Whistleblowing: procedural and dogmatic problems in the implementation of directive (EU) 2019/1937

Abstract

Purpose This paper aims to enlighten the shortcomings of the EU Whistleblowing Directive 2019/1973, which could interfere negatively with its successful national implementation. In focus is the tension between companies potentially attempting to hide misconduct and disgruntled employees taking advantage of generous protection under the directive. Design/methodology/approach With an extensive literary basis, this paper explores articles of the EU Whistleblowing Directive 2019/1973 under five areas of the so-called “weakness.” With view to Germany and Austria, the difficulty of implementing the directive is highlighted and likewise with view to Switzerland, a potential solution is presented. Findings The Whistleblowing Directive 2019/1973 overshoots its target by protecting whistleblowers without considering the wider public interest. There are specific points of arbitrary definition which demand resolution to ensure a successful national implementation. Originality/value This is a multifaceted discussion of a highly contentious ethical debate. Through an exploration of specific points of the Directive, it is possible to present why there are points of contention in the first place, and also the difficulty of implementing the principle of proportionality. The issue at the heart of the matter is balancing the protection of trade secrets with the fundamental necessity of whistleblowing as a means of last resort.

What are the consequences of corporate greenwashing? A look into the consequences of greenwashing in consumer and financial markets

“…Regulations concerning CSR-related topics are still in their infancy and are thus generally acknowledged as largely ineffective. They are either not well applied or too ambitious in the scope of their application, making them next to impossible to enforce (Du, 2015; Teichmann and Wittmann, 2022). Nevertheless, the multitude of international initiatives is promising in this regard.…”

Cultural aspects of the EU-Whistleblowing Directive

“…On the one hand, it works with an ambitious scope of application whilst on the other, there are crucial moments of shortcoming. It fails to provide for example, a definition of whistleblowing (Teichmann and Wittmann, 2022). The WBD’s material scope of application also explains why it is likely to conflict with trade secrecy.…”

“…Pursuant to Article 1, all infringements concerning financial services, terrorist financing and the prevention of money laundering fall under the scope of the WBD. These are areas traditionally protected by professional secrecy, such as the Trade Secrets Law (Teichmann and Wittmann, 2022). Before the emergence of the WBD, regulation on trade secrecy was perceived to be invincible.…”

“…Experience with whistleblowing cases shows that although an initial report is often made anonymously, anonymity is more often than not, lost in the course of an investigation (Rosenthal, 2021). The WBD thus gives the false appearance of guaranteed confidentiality (Teichmann and Wittmann, 2022). This is significant in light of the personal risk which a whistleblower takes on, since the weight of the repercussions falls on them, alone.…”

“…This becomes significant against the background of the last failure to implement legislation on whistleblowers in Switzerland, which was soundly rejected by parliament (Swissinfo, 2019). In Switzerland, with the exception of Article 22 of the Federal Personnel Act, whistleblowers do not benefit from any explicit legal protection (Teichmann and Wittmann, 2022). In light of the EU’s reach as well as national difference within the EU, whistleblowers must therefore be informed which national authority they can submit their report to, as despite similar trends in European thought, the practical responses are widely divergent (Rosenthal, 2021).…”