Whistleblowers and journalists who expose criminality can face large fines and even jail time in Germany and Spain, despite long-agreed EU laws to protect them, according to a new report published on World Press Freedom Day.

Though leaks from EU institutions can be critical in correcting improper decisions, staff can only rely on separate rules that are generally weaker than those of an EU Whistleblowers Directive they may have written, a glaring inconsistency, the report says.

Officials and private employees at national level who blow the whistle on criminality or other wrongdoing in the public interest can face up to five years jail in Germany and seven years in Spain, according to the legal review for the European Environmental Bureau (EEB). Whistleblowers are largely protected in France, Italy and the UK, it found.

The report is a snapshot of existing legal protections in six European countries. It reviewed court papers to measure how active public prosecutors are and how lenient judges tend to be.

Whistleblowing law in 2021, a quick guide. Legal risks and protections in Europe.

The EU Whistleblowers Directive, which entered into force in December 2019, obliges governments across Europe to transpose the directive into national law by 17 December 2021. This will greatly strengthen protections in many European countries, so much so that officials or private employees could anonymously go public with incorrect allegations and still gain legal protection, so long as they were acting in good faith. But some governments are dragging their feet, according to the EU Whistleblower Meter. The NGO tracker claims that, seven months before the December deadline, no governments have yet transposed the directive and six are yet to even begin the process.

Six EU nations are yet to even begin adopting the EU Whistleblowers Directive into law, according to EU Whistleblower Meter

EEB Secretary General Jeremy Wates said: “Brave individuals who expose wrongdoing are doing their employer a great favour and the last thing they deserve is jail time. The fact that they still face criminal charges in mature European democracies is a matter of deep concern. Even if prosecutions of whistleblowers are rare, their ability to remain steadfast in following their moral imperatives deserves our respect and support. Thankfully, the EU blueprint provides a quick template for governments to fix the problem.”

Joaquin Hervada, Partner at DLA Piper commented: We often find that the law is applied in dissimilar fashion across the EU, presenting an obstacle to an adequate functioning of our markets and society in general. The compliance space does not escape this problem, and there is particular room for improvement in supporting those who are willing to take risks to foster compliance through disclosure of wrongdoings. Disclosure is no doubt a powerful deterrence for certain types of conduct and regulators have the challenging task of securing greater protection of this very useful instrument without damaging other legitimate interests like protecting personal secrets or privileged information. However, challenging as it may be, the task should be tackled as a matter of priority since there is still much to do in this compliance space.” 

The report is based on advice from a team of pro bono lawyers across Europe, co-ordinated by DLA Piper in collaboration with Dentsu Spain and facilitated by TrustLaw, the Thomson Reuters Foundation’s global pro bono service.

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