GSOC marks new EU Whistleblowing Directive with publication of ‘Dublin Declaration’

Press Release – Friday 17 December 2021.  

 The Garda Síochána Ombudsman Commission (GSOC) has joined with sister agencies in the Network of European Integrity and Whistleblowing Authorities (NEIWA) to call for the swift transposition of the EU Whistleblowers Directive (1937/2019), which comes into force today, 17 December 2021.

The call has been made in the NEIWA ‘Dublin Declaration’, published today by the Network, including on the GSOC website.

The ‘Dublin Declaration’, elaborated on foot of last week’s NEIWA conference, hosted by GSOC in Dublin:

• Reminds Member States that the Directive required them to complete transposition into national law by 17 December 2021
• Notes that only 3 EU Member States have achieved this obligation
• Encourages other Member States to complete the transposition without further delay, “with a full-hearted recognition of the spirit of the Directive”
• Stresses that whistleblowers “should be protected against any form of retaliation and are entitled to the protection measures available”
• Emphasizes that on 17 December 2021, “important elements of the Directive may have direct effect … in member states where the transposition has not yet occurred.” This includes the obligation to start setting up external reporting channels by competent authorities.
• Recommends that authorities “inform the public broadly” about the rights and protections afforded by the Directive.

While Irish legislation to transpose these new EU standards is significantly progressed, current indications are that the Protected Disclosures (Amendment) Bill 2021 will be enacted in quarter 1 2022.

ENDS

NOTES TO EDITOR

The Dublin Declaration is available below. It was elaborated on foot of NEIWA’s 8-9 December conference hosted by GSOC in Dublin. 

The Network of European Integrity and Whistleblowing Authorities (NEIWA)

The Network of European Integrity and Whistleblowing Authorities (NEIWA) was established in the Spring of 2019 by a number of organisations across Europe with a role in receiving and investigating complaints and protected disclosures from whistle-blowers.

Member institutions must have a range of statutory powers in their jurisdictions, including the ability to receive disclosures, decide if they contain relevant wrongdoing, investigate matters of criminal and or disciplinary nature, report on matters to prosecutors, be involved the prosecution of matters in a legal environment and make observations on findings.

GSOC, in the context of its protected disclosures remit under the Protected Disclosures Act 2014, was one of the Network’s nine initial members. The Network has since expanded to a membership of 30 institutions from 22 EU member states.  The Office of the Ombudsman in Ireland is NEIWA’s newest member, who joins in anticipation of its new function as home to the new ‘Protected Disclosures Office’ to be established under the new legislation (see below).

The Network is currently administered in the Netherlands by Dutch network member ‘Huis voor Klokkenluiders’ (the House of Whistleblowers). See their website HERE.

The focus of the network to date has been the EU Whistle-blowers Directive (1937/2019), and the challenges and opportunities faced by network members in ensuring its effective transposition into domestic law.

NEIWA meets four times a year with two formal meetings and two informal.

Following its recent meetings, the Network has issued various declarations and statements highlighting some of the core requirements for the effective implementation of the Directive at member state level.

• For its ‘Brussels’ Declaration of 18 December 2020, see HERE.
• For its declaration of 17 September 2021, which focussed on the approaching 17 December transposition deadline, see HERE.

NEIWA as a body interacts with the EU on the transposition of the Directive and also shares information and learning about the challenges faced in member states on implementing the Directive.  Progress on Transposition has been slow to date, with most Member States, including Ireland, likely to miss the transposition deadline of 17 December. NEIWA will therefore continue to engage at international and domestic level to advocate for the swift incorporation of the Directive into domestic law, and to raise awareness and understanding of the requirements of the new Directive, which regardless of transposition, will come into force on 17 December.

It is the intention of NEIWA to further expand in the coming years as the Directive is implemented, and to continue to share learnings from member States, which will assist not only in Transposition, but in ongoing periodic review of member states’ legislative frameworks on whistle blowing.  With a view to this, NEIWA have engaged with the EU on funding for the creation of a knowledge hub.

The Directive

The EU Whistle-blowers Directive (1937/2019) places an obligation on all EU Member States to legislate for a clear set of standards to permit whistleblowing and protected disclosures by employees, as well as protections for those who come forward. The deadline for member states to do this is 17 December 2021.

Available at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32019L1937

Key elements of the directive include:

• From its entry into force, companies and public bodies with 250 or more employees will have to implement an internal reporting system available to all employees. From 2023, this will reduce to companies and public bodies with 50 or more employees.
• Disclosures include: breaches of EU Law in areas of procurement, finance, safety, compliance, environmental protection, food safety, public health, privacy and data, information security, competition law, and other areas.
• The directive provides that whistle-blowers will be protected from dismissal.
• Member States must establish clear procedures and reporting channels in domestic law to ensure the provisions of the directive are met, and that all the protections are provided for.
• Member states must also put into place effective sanctions for failure to adhere to the directive’s standards, or failure to protect whistle-blowers.

A useful overview of the Directive is available HERE.

Transposition of the Directive into Irish Law

In Ireland, it is intended to transpose the Directive by way of the Protected Disclosures (Amendment) Bill 2021. It is available HERE.

The Draft Bill has been undergoing pre-legislative scrutiny in the Oireachtas Joint Committee on Finance, Public Expenditure and Reform and Taoiseach.

GSOC has been engaging with the Department of Public Expenditure and Reform on the transposition process, including through provision on views on the draft bill and by way of submission to the Oireachtas Joint Committee.

A core provision of the Bill is the proposed establishment of a new ‘Protected Disclosures Office’ in the Office of the Ombudsman.