On April 16, the European Parliament will vote on rules to protect people reporting breaches of European Union law and provide incentives for those aware of wrongdoing to act in the public interest. The proposed Whistleblower Directive allows whistleblowers to report internally or externally to national or EU bodies.
The previous version of the EU directive required whistleblowers to report internally to receive protection. This prompted Stephen M. Kohn, a Washington-based whistleblower lawyer who represents high profile European whistleblowers (including the Danske Bank whistleblower, Howard Wilkinson), to send two letters to the European Parliament explaining the serious deficiencies in the proposed Directive. Kohn, who is also the Chairman of the National Whistleblower Center, provided a detailed legal analysis of the appropriate scope of a protected whistleblower disclosure framework in Europe which would be consistent with those in the United States and recognized under international anti-corruption conventions.
The first letter sent in July 2018 pointed out that the proposed Whistleblower Directive undermined international anti-corruption treaties and placed restrictions on the ability of private sector employees to directly report corruption to law enforcement officials. The second letter, sent in February 2019, explained how an internal reporting requirement “undermines the rule of law, violates international anti-corruption conventions, violates U.S. securities laws applicable to numerous European companies.”
Kohn urged the EU, to “ensure that the fundamental right of citizens to report crimes to law enforcement are vindicated in the final approved Whistleblower Directive.” The EU approved these reforms in the final version of the historic Directive that will be voted on by the European Parliament on April 16, 2019.
In testimony before the European Parliament Kohn also urged European legislators to ensure that whistleblowers could report fraud and abuse directly to responsible governmental agencies.
Numerous European NGOs and citizens also opposed the restriction on whistleblowers’ rights to contact law enforcement agencies. Over 250,000 petitions were signed objecting to the restrictions, and NGOs, such as Transparency International, played key roles in urging the European Union to ensure that whistleblowers could report fraud and abuses directly to appropriate government authorities.
In a March 12 press release the EU stated that an agreement for safe reporting channels had been reached:
“To ensure that potential whistle-blowers remain safe and that the information disclosed remains confidential, the new rules allow them to provide information on breaches using internal and external reporting channels. Depending on the circumstances of the case, whistle-blowers will be able to choose whether to first report internally to the legal entity concerned or directly to competent national authorities, as well as to relevant EU institutions, bodies, offices and agencies.”
On April 1, Kohn received a response to his letters opposing the internal reporting requirements from the European Parliament. The Parliamentary spokesperson informed Kohn that whistleblowers would not be required to report internally, but could also report directly to governmental authorities or the news media.
In the letter the responsible Member of Parliament, Georgia Georgiadou replied, “a well-balanced set of measures, including high standards of protection for whistleblowers, the provision of clear and easily accessible information on existing procedures and protection, widely available reporting channels, and a broad personal and material scope.”
“The amended Directive is a historic step in the right direction. For the first time Europe is acknowledging the key role whistleblower’s play in protecting the public interest and reporting fraud. We look forward to working with European governments in helping them develop truly effective whistleblower programs, including the payment of whistleblower rewards,” Kohn said.
Read Kohn’s Letters to the European Parliament:
- February 7, 2019: Kohn Letter to the European Parliament on EU Whistleblower Directive
- July 13, 2018: Kohn Letter to the European Parliament on EU Whistleblower Directive
Kohn, Kohn & Colapinto’s primary litigation includes representing international whistleblowers under the Foreign Corrupt Practices Act, tax fraud whistleblowers, qui tam reward laws, the False Claims Act, SEC whistleblowers, and IRS whistleblowers. In 2012 the firm obtained the largest whistleblower reward given to a single individual in history ($104 million to UBS whistleblower (Bradley Birkenfeld). Stephen M. Kohn’s eighth book on whistleblower law is the highly respected The New Whistleblower’s Handbook (Lyons Press, 2017). Kohn also serves as the Chairman of the Board of Directors of the National Whistleblower Center.
