By Dimitrios Kafteranis
On Monday 23 April 2018, the European Commission released its proposal on the protection of persons reporting on breaches of Union law. The proposal of the European Commission comes after pressure of the European Parliament and other organisations calling for a coherent protection of whistle-blowers at the EU level. This pressure results partially from different scandals that were revealed by whistle-blowers such as Panama Papers or the case of the Pilatus Bank in Malta. The Commission’s proposal aims to set common minimum standards to protect whistle-blowers when they report breaches of EU law. It has several legal bases and covers a wide-range of EU areas such as consumer protection, financial services and the protection of privacy and data. The reporting procedure follows the ‘classic’ three-tier model for whistle-blowing, that is reporting firstly internally, then to the designated authorities and as a last solution to the public. The text is innovative in the sense that it proposes a wide definition of the whistle-blower ranging from trainees to ex-employees. The European Commission regards whistle-blowing as an enforcement tool for the prevention, detection and prosecution of illegalities affecting EU law.
For the future, it is compelling to pursue the negotiations between the two co-legislators of the EU (European Parliament and Council) in order to follow the challenges on the question of whistle-blowing at the national and European level. These negotiations could take many years. This post aims to introduce the reader to the proposal for a Directive on the protection of whistle-blowers by cross-referring to the case of the Pilatus Bank where a journalist and a whistle-blower are involved. The purpose is to highlight that there is a need for an EU Directive on the protection of whistle-blowers and to demonstrate that the proposed EU Directive would have better protected the Pilatus Bank whistle-blower. Furthermore, this contribution will demonstrate the problematic nature of money laundering and banking supervision at the EU level. Following the creation of the Banking Union, the interconnectivity of banks is a fact and a problem in one country can create a domino effect to the others. For example, the Pilatus Bank scandal does not only concern Malta but the European banking system as a whole. Continue reading
By Päivi Leino and Daniel Wyatt
The EU Treaty commits the Union to respect international human rights in both its internal and external action, and to always act as openly as possible. Despite this, the transparency of the EU institutions remains a hot-button issue, including in relation to the consummation of international agreements (or other international arrangements) that have potential human rights implications. This very issue was on display in the recent judgment of the General Court in Case T-851/16 Access Info Europe v Commission. Here, Access Info Europe, an NGO concerned about the 2016 compatibility of the EU-Turkey refugee deal with international human rights law, sought, through an access to documents request made to the Commission, to uncover the institution’s own legal analysis regarding the agreement’s legality.
The matter was no less urgent because of the General Court’s recent order in Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v European Council, which established that the deal does not count as measure adopted by one of the institutions of the EU for the purposes of judicial review under the Treaties. This leaves the matter in a legal limbo especially considering that the EU is not party to the European Convention of Human Rights and thus not subject to its external human rights scrutiny, a path effectively closed by the CJEU itself. To our knowledge, the EU Fundamental Rights Agency, the EU body that was established to provide expertise on fundamental rights, had not been consulted on the matter. It would be a clear concern to the public to uncover, if this indeed was the case, that an international arrangement that dealt with areas of fundamental importance, for example considerations of whether Turkey was a ‘safe third country’ for the purposes of the refugee regime, was concluded on the basis of hasty and incomplete legal advice—or, in the worst case, that advice that deemed the agreement illegal was ignored. It is hard to envisage a matter in which public access rules would be serving their constitutional function better.
By Benedikt Pirker
Arguably one of the most important international environmental agreements of our days, the Aarhus Convention (AC), obliges its contracting parties to provide access to information, public participation and access to justice in environmental matters. Based on a communication by the NGO ClientEarth, the Compliance Committee – the compliance mechanism put in place under the AC – handed down an important decision (called ‘findings and recommendations’ in the Aarhus terminology) with regard to the European Union on 17 March 2017. The present post aims to highlight the most important findings of the Committee, which – in no uncertain terms – criticized a number of features of current EU law as a failure to implement the AC. Continue reading
By Elinor Pecsteen
Recently, journalists from all EU member states raised, for the first time ever, a joint voice before the Court of Justice of the European Union (CJEU) against the refusal of the European Parliament (EP) to give access, on grounds of personal data protection, to information on how MEPs spend their allowances.
This development is no surprise as the endeavour by individuals and non-governmental organisations alike to hold the EU to its democratic imperative of openness and transparency has been a clearly increasing tendency over the years. However, meeting the expectations of the civil society is not always an easy task for the EU institutions, which must keep a fair balance between transparency and the protection of an individual’s privacy and integrity throughout their processes.
This balance has become essential in the present context of increasing numbers of requests for public access to EU institutions documents containing personal data. Yet, the question remains unclear as to when it is legitimate for an institution to refuse access to documents on the ground of personal data protection.
The following post attempts to shed some light on this question by discussing two recent CJEU judgments whose common threads allow for some interesting consistency to be found in the Court’s logic. On the basis of these judgments, it would seem that for the Court, the use of personal data protection as a justification for refusing requests for access to documents should be restricted. Such requests are essential to increase the confidence of citizens in the EU and require that, provided the conditions are fulfilled, full access be given to the institutions’ documents, personal data included. The Court specifies that the context of public mistrust in the EU and the potential dual role of its decision-makers must weigh in the institutions’ assessment of the conditions. Continue reading