The conviction of the three whistleblowers that broke the LuxLeaks scandal should serve as a trigger for the EU to establish a European system of whistleblower protection, Virginie Rozière told EURACTIV France.
Virginie Rozière is a French Radical Left party MEP (Socialists & Democrats). She is a member of the Committee on the Internal Market and Consumer Protection.
Rozière spoke to EURACTIV France’s Cécile Barbière.
The European Parliament demands that whistleblowers be protected to the same extent right across the EU. Why is this?
This has been on the agenda of the European Parliament for a long time, since the creation of the TAXE committee in the wake of the LuxLeaks scandal. This committee was set up to examine the tax optimisation practices used by certain states to reduce the tax burden on multinationals.
At that time the European Parliament was already asking for special European protection for whistleblowers. We have seen just how important this is in the LuxLeaks affair. And things have become much more worrying since the verdict was delivered in the trial of whistleblowers Antoine Deltour, Raphaël Halet and the journalist Edouard Perrin at the end of June, leading to their conviction.
Our idea is to say that we need these people, that they act in the public interest, so we should not be punishing them but helping them. We should take into account their contribution to the defence of the European citizens’ interests.
This demand was repeated during the discussion of the Trade Secrets Directive. For the first time, this introduced an explicit protection for whistleblowers into European legislation that goes beyond the denunciation of illegal activities but took into account the fact that we should protect people that denounce all actions that go against the public interest, even if they are technically legal, like the LuxLeaks affair.
Why is the protection established under the Whistleblowers Directive not adequate?
This protection concerns trade secrets. So we protect whistleblowers from companies that would prosecute them on the grounds of trade secrets violations, but not against all sorts of other risks: defamation, theft, concealment, computer piracy and so on.
What is the state of whistleblower protection in the European Union today?
Very few countries apply any kind of protection for whistleblowers. Five member states have no specific legislation. Sweden has one of the best systems. In France, we will soon have one too. But the situation is quite varied.
The aim of the Trade Secrets Directive is to introduce provisions that would have stopped the prosecution of the LuxLeaks whistleblowers. Today, Luxembourgish law is not in line with the directive, which will only come into force in two years’ time.
So the European law could have served as a legal basis for the Luxembourgish court not to prosecute the actors concerned, but just to charge them under the Trade Secrets Directive. This is why we also demand a legal framework that protects whistleblowers against charges of theft – which was also brought in this case – concealment and defamation.
So does the Trade Secrets Directive provide a real basis for the protection of whistleblowers?
It creates a broad precedent. It gives whistleblowers the certainty they need to expose certain information relating to fraudulent practices, as well as non-fraudulent practices that go against the public interest. This is the broadest possible definition of a whistleblower.
I think the significance of this precedent and the framework we have established with this directive has been under-estimated.
The European text is a directive, which means the member states now have to transpose it into their national law. Isn’t there a risk that this could weaken the protection it offers?
The member states cannot do less than the directive states. They can provide stronger protection, but they cannot go below the minimum set by the directive. If a state does not conform to these rules, it can be attacked in the Court of Justice of the EU.
Why is the European Commission still refusing to propose a specific bill on the protection of whistleblowers?
The Commission uses legal arguments to claim that the EU has no competence to establish a comprehensive, transversal protection system. I do not share this opinion. There are elements in the treaties that could legitimately serve as a basis for the Commission to propose a text.
For example, the EU can perform any action that is necessary for the internal market (Article 114) and it is allowed to make legal provisions on criminal matters in areas where it has previously legislated (Article 83).
It can define what is punishable and the nature of the possible punishments, it can harmonise penal law across the whole of the EU in all sectors where the EU already has a competence. These include the protection of the environment, the protection of public health, public security, the internal market, consumer rights, competition, etc.
We can find solutions, especially if the political will exists. But instead, we see reluctance, particularly from the member states. And the Commission is not prepared to act against the will of the member states at this time. So it is up to the European Parliament to rebalance the equation, which it does.
What can the European Parliament do, concretely, to push the EU forward on this subject?
The Parliament has to even out the balance of power. The political will exists in the Parliament’s left-wing. We want to come up with a real proposal, so the Parliament will produce a legislative initiative report: a report with a proposal for a directive attached. That should allow us to show that the argument that there is no legal basis does not hold water. But the Commission is still the only institution that can decide whether or not to act on this proposal.
Do you think that the EU can advance on this project?
I think it has every reason to do so. This would send a very strong signal that the EU protects the interests of its citizens. But it will be a tough political battle. The trial and conviction of the LuxLeaks whistleblowers have brought the question to the heart of the news. It is appalling that it has taken a prosecution to make things change. But today we have real political leverage.