Time to reconsider Strasbourg’s whistleblower case law
On October 2019, the EU adopted Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (Directive) following the proposal for a Directive introduced by the Commission on April 2018. The new approach taken in the Directive to protect whistleblowers differs from the concept developed by the European Court of Human Rights (ECtHR). In its case law on freedom of expression, the Strasbourg Court generally expects whistleblowers to report grievances first within the organisation and it applies a good faith and a public interest test. In contrast, to be protected as a whistleblower, these elements are not required by the Directive. This begs the question: How will the Strasbourg Court deal with these differences in future cases? In this post, we argue that the ECtHR should reconsider its case law and align it with the Directive in order to ensure the same level of protection for all Member States of the Council of Europe (CoE). Given the fact that the Resolution 2300(2019) of the Parliamentary Assembly of the CoE welcomed the Directive and invited all CoE Member States to adopt its provisions, we will likely see a change of direction in the case law of the ECtHR towards the Directive. The expected change in precedent would lay another corner stone to a coherent and comprehensive whistleblower protection in Europe.
Differences between ECtHR´s whistleblowing case law and the Directive
The Strasbourg Court has established case law on the protection of whistleblowers under Article 10 ECHR. It has adopted six criteria, first, introduced in Guja v. Moldova (2008), that should be reviewed in order to find if there was an unjustified interference to the applicant’s right to freedom of expression. The Directive contains a set of provisions to protect persons who report breaches of EU law within an organisation (Art. 7), externally to the authorities (Art. 10) or disclose information directly to the public (Art. 15). The two approaches present fundamental differences that will be analysed in the following part.
1. Ambit of the case law and the Directive: public interest – breach of EU law
The case law of the ECtHR is applicable when the person (an employer or public servant) report grievances of any type as long as there is a public interest in the information revealed, meaning that the public has to be concerned by the whistleblowing. The Directive is not consistent with the element of public interest. Only public disclosures depend in some cases explicitly on a public interest test (Art. 15(1)(b)(i)). The same requirement does not apply for internal reporting (Art. 7) or external reporting to the authorities (Art. 10). It can, at most, implicitly be derived from the fact that a protected reporting requires a breach of EU law. However, the ambit of the Directive is precisely defined in Art. 2, 3 and in the Annex. Its provisions are only applicable when a person discloses certain breaches of EU law enumerated in these provisions. Therefore, its ambit is narrower than ECtHR´s whistleblowing case law.
For instance, national security whistleblowers are not protected under the Directive (recital 24 and Art. 3(2)), but they can be protected under Art. 10 ECHR as the Strasbourg Court has already provided protection to national security whistleblowers. The Court has ruled in one case (Bucur and Toma v. Romania), that convicting the applicant who blew the whistle on the Romanian Intelligence Service violated his right to freedom of expression. In another case (Heinisch v. Germany) the Court decided that dismissing an employer who reported about ill treatment of old people in the care sector infringed the applicant’s same right. In contrast, the case of Mrs. Heinisch would neither fall under the ambit of the Directive (compare Annex Part I. H.).
2. Good faith or reasonable grounds to report
According to the ECtHR the whistleblower should disclose the information in good faith. The assessment of good faith is done in a case by case manner. Under the Directive, good faith is not required as the whistleblower should only have reasonable grounds in order to report (Art. 6(1)(a)). The personal motives are not checked. Another criterion, under the ECtHR approach, is that the whistleblower should provide authentic information in an effort to avoid the reporting of fake or wrong facts. The Directive does not contain any such criterion. The whistleblower can report even if he or she has only suspicions that a wrongdoing occurs (Art. 5(2)). In addition, the ECtHR exercises a proportionality check in relation to the damage caused to the employer by the whistleblower. Such a proportionality check is not required by the Directive either.
3. Channels for disclosure
A final point is the channels for disclosures. The prevailing opinion believes that the Strasbourg Court has introduced a strict “three-tier” model. Under this model, the whistleblower should report internally, in the first place. If internal reporting is not possible or effective, only then, the whistleblower has the right to report to the authorities. If reporting to the authorities is not possible and effective again, the whistleblower can make a public disclosure. In contrast, scholars have argued that the ECtHR does not oblige the whistleblower to report internally at first because on closer examination the Court never explicitly prescribed internal whistleblowing as a rule (Ninon Colneric, in: Soziales Recht 8 (2018), p. 232). The “third tier”, public disclosure, is the last resort for the whistleblower under the Strasbourg case law. However, it is not very clear from the case law what the specific requirements for a protected public disclosure are.
The Directive drew inspiration from the principles established by the CoE and the ECtHR and follows a similar but not identical approach. Under the Directive, it is crystal clear that the whistleblower can report internally or to the authorities without any priority given to internal reporting (Art. 6(1)(b)). In both cases the whistleblower is equally protected. The approach is different, as well, when it comes to internal reporting or to the authorities. While public disclosure is the last resort for the whistleblower according to the Strasbourg Court, it can be a first option for the whistleblower under certain strict conditions (Art. 15).
The way out of normative contradictions: respectful interplay between both jurisdictions towards a coherent protection of freedom of expression
From a normative perspective, the Strasbourg Court should reconsider its case law and align it with the Directive to ensure the same level of protection under Art. 10 ECHR in all CoE Member States. Without priority to internal whistleblowing, a public interest and good faith test, there are less requirements to be protected as a whistleblower under the Directive. Consequently, the Directive is more whistleblower friendly and guarantees a higher level of protection of freedom of expression compared to the ECtHR case law. This is problematic, as it creates different levels of protections in the EU and other CoE Member States. Someone blowing the whistle in the EU might be protected under the Directive and accordingly under Art. 11 EU Charter of Fundamental Rights (CFR), while he or she would not be equally protected under national law and Art. 10 ECHR when blowing the whistle on equivalent grievances in a non-EU COE Member State.
The need for a coherent freedom of expression interpretation by the ECtHR that does not fall behind the protection of the Directive derives from the principle entrenched in Art. 53 ECHR. According to this article, the Convention shall not be construed as limiting or derogating from human rights and fundamental freedoms ensured under the laws of any High Contracting Party. A future applicant from a non-EU CoE Member State might argue in Strasbourg that he or she shall enjoy equal protection under Art. 10 ECHR like a person who blows the whistle on equivalent grievances in the EU. The applicant might argue, he or she should not be obliged to blow the whistle internally first because in a similar case coming from an EU Member State the Strasbourg Court would consider all relevant domestic, European and international laws in its decision and therefore take into account the “two-tier” model introduced by the Directive.
Furthermore, the differences between ECtHR´s case law and the Directive seem problematic as they create a complex and confusing picture for the whistleblower and his or her protection. If the Strasbourg Court will uphold its model, whistleblowers in the EU will have to distinct between three different concepts: the ECtHR´s case law, the Directive and also potentially differing national whistleblower legislation and case law. One might argue, this “normative patchwork” is simply the result of different competences in the multi-layered European legal system. However, a thorough solution would be more compelling and is within easy reach: A well-balanced way of mutual respect should guide the ECtHR and the EU Member States to bridge the above-mentioned differences. The relationship of the ECtHR and the EU, and more specifically the CJEU, is a harmonious and co-operative one. This relation is not expressed in an institutional context but is rather informal. It is structured on the basis of a presumption of equivalent protection, as it was confirmed in Bosphorus. Based on this way of mutual respect the Strasbourg Court, on the one hand, should adopt the level of protection introduced by the Directive as described above.
On the other hand, we have already argued elsewhere that EU Member States should respect ECtHR´s case law, when transposing the Directive, and widen the scope in the implementation process to generally any breach of the law. In a future case, an EU applicant, like Mrs. Heinisch, who would not be protected under the Directive, might argue in front of national courts and the CJEU with regard to Art. 53 of the Charter of Fundamental Rights of the European Union (CFR) that she would be protected as a whistleblower under Art. 10 ECHR and should therefore also enjoy whistleblower protection under Art. 11 CFR. From this perspective, Art. 53 CFR and Art. 53 ECHR can be described as “reflecting normative levers” which raise freedom of expression protection in the EU and the CoE to a high yet coherent level.
Finally, the progression in the European whistleblowing legislation demonstrates the need for the Strasbourg Court to reconsider its established case law and align it with the new rules as adopted by the Directive. While its whistleblowing case law has been launched more than a decade ago, the relevant legislation is evolving constantly, and, at this point of time, the Directive represents the most complete and innovative legislation on the issue. The Parliamentary Assembly of the CoE shares this view as it welcomed the Directive in the Resolution 2300(2019) and invited all CoE Member States to adopt its provisions.
The proposed interplay between Strasbourg and the Directive is the method of choice for future whistleblower case law and the implementation of the Directive. A possible obstacle may be the fact that the EU, to a certain extent, influences indirectly the ECtHR on its approach. Although CoE Member States only have to abide by judgements in cases in which they are a party to (Art. 46 (1) ECHR), they could be affected in future, if the Directive´s criteria are adopted by Strasbourg in an EU-related case. Nevertheless, a change of approach by the ECtHR towards the Directive’s criteria is awaited. The differences we highlighted above will be resolved when the Strasbourg Court takes into consideration the Directive’s standards and decides to soften its own approach in an effort to create a similar level of protection by both European jurisdictions. This scenario is optimal as it will promote a clearer picture for the protection of whistleblowers because it provides legal certainty and leaves no confusion to the whistleblower.