ANNEX

The following amendments, which received at least a quarter of the votes cast, were rejected during the discussion:

Point 3.11

Add a new point:

3.11. The EESC recommends addressing more fully the issue of preventing downside risks for public and private enterprises concerning undue use or unlawful disclosure of sensitive information. The reputation of enterprises and organisations should be sufficiently safeguarded in the event of malicious conduct.

Reason

The reputation of any organisation is crucial for all stakeholders, not at least for the employees.

Outcome of the vote

In favour 84 Against 130 Abstentions 15

Point 4.1

Delete:

4.1 The EESC considers it unacceptable that it was not possible to consult the social partners on the proposal for the directive, as provided for in Article 154 TFEU. The Commission must not repeat this practice.

Reason

Since the proposal is not based on Article 153 TFEU the consultation of social partners is not required.

Outcome of the vote

In favour 79 Against 133 Abstentions 18

Point 4.2

Amend as follows:

4.2. The Committee recognises that the legal basis for the directive is broad enough to ensure an adequate protection of whistleblowers. However, for the sake of legal certainty, the EESC calls for clarification regarding the legal basis applicable to workers' rights. recommends that the social domain also be covered by the directive by adding Article 153 TFEU to the 16 legal citations of the directive. The EESC points out that in Article 1 (material scope), the protection of workers is omitted from the list of kinds of abuse of law which a whistleblower may report. Nor does the proposal include discrimination, harassment or violence in the workplace etc. The Committee therefore calls for these subjects to be included in the directive.

Reason

Since there are divergent views about the legal basis for the directive the issue needs to be clarified by the Commission as regards the question of workers' rights (Article 153 TFEU).

Outcome of the vote

In favour 82 Against 139 Abstentions 14

Point 6.2

Amend as follows:

6.2. The EESC considers that the principle of graduated reporting (internal, competent authorities, public) is in line with the principle of responsible whistleblowing, especially with a view to identifying and stopping infringements quickly and effectively at the source, and thus mitigating internal or external risks . However, the EESC believes that a whistleblower must have a free choice between access to internal channels and to the competent authorities, and therefore recommends a two- rather than three-stage procedure, in the interests of fairness and legal certainty. On the one hand, international studies, even in countries that have no requirement to use internal reporting channels (United Kingdom, Ireland), show that employees resort first to internal procedures out of loyalty; there is therefore no danger of the internal channels being bypassed on a large scale. Furthermore, where use of internal channels is required, it is difficult to provide for all the necessary exceptions. On the other hand, national laws provide for direct involvement of the authorities (e.g. for criminal offences). Finally, this obligation only applies to employees, other workers being exempt. This leads to a breach of the principle of equality and to legal uncertainty.

Reason

It is important that the company has the opportunity to first solve the issue internally before the whistleblower goes to the public. The two-stage reporting procedure facilitates identifying and stopping infringements quickly and effectively at the source.

Outcome of the vote

In favour 78 Against 145 Abstentions 11

Point 7.2

Amend as follows:

7.2. The directive must provide s for compensatory measures in the event of retaliation (Article 15(6)) and not refer s the matter to the national legal framework which, as we have seen, varies from country to country or may even be non-existent . In order to effectively protect whistleblowers from any kind of direct or indirect penalty, the implementation of the directive should be carefully monitored and assessed as to the effectiveness of the national frameworks. must provide for full compensation for damages, without any ceiling (including loss of pension contributions in the event of dismissal), on the model of the 1998 Public Interest Disclosure Act.

Reason

It is important that the sanction and compensation systems based on national frameworks fulfil the basic objectives of the directive as regards the protection of the whistleblower while respecting the principles of the national legal systems. This is one of the key issues to be monitored regarding the implementation of the directive.

Outcome of the vote

In favour 82 Against 144 Abstentions 10

Point 8.1

Amend as follows:

8.1. The EESC considers that the aim of the directive is to facilitate whistleblowing and to protect whistleblowers. In this connection, Article 17(2) should be clarified dropped , as it might create s confusion between responsible whistleblowing and defamation and false accusation, which are offences already covered by national law.

Reason

While there is a need to address the consequences for false, misleading and unjustified disclosures by providing effective, proportionate and dissuasive penalties, the scope of these sanctions in Member States should be properly clarified.

Outcome of the vote

In favour 87 Against 147 Abstentions 6

Point 1.4

Amend as follows:

1.4. The EESC recognises that calls on the Commission to review the legal basis for the directive is broad enough for ensuring an adequate protection of whistleblowers. so as to include workers' rights under Article 153 of the Treaty on the Functioning of the EU (TFEU). However, for the sake of legal certainty, the EESC calls for clarification regarding the legal scope applicable to workers' rights.

Reason

The articles determined by the EC as a legal basis can fully guarantee an enhancing of the enforcement of Union law by introducing new provisions on whistleblower protection to strengthen the proper functioning of the single market and the correct implementation of Union policies and at the same time to ensure consistent high standards of whistleblower protection in sectorial Union instruments where relevant rules already exist. However, to avoid confusion about the legal basis related to workers’ rights some clarification is needed.

Outcome of the vote

In favour 84 Against 133 Abstentions 6

Point 1.4

Introduce new point after current point 1.4:

The EESC is convinced that a legal framework for the protection of whistleblowers should be constructed in such a way as to enable a distinction to be drawn between information that is only suitable to be disclosed within the company and information that is suitable to be disclosed to the authorities or even to the general public. This is particularly important when it comes to trade secrets.

Reason

The proposal should make it clear that whistleblowers must always report information that contains trade secrets internally to the company, because once this information has been made public the harm done to the company is irreversible.

Outcome of the vote

In favour 89 Against 149 Abstentions 7

Point 1.6

Amend as follows:

1.6. The Committee recommends (Article 13) a two-stage reporting procedure initially giving the whistleblower access to internal channels with a view to identifying and stopping infringements quickly and effectively or to the competent authorities (whichever is preferred) ; and subsequently, if necessary, to the competent public authorities, and, if appropriate to civil society/the media, in the interests of fairness and legal certainty .

Reason

It is important that the company has the opportunity to first solve the issue internally before the whistleblower goes to the public. The two-stage reporting procedure facilitates identifying and stopping infringements quickly and effectively at the source.

Outcome of the vote

In favour 89 Against 144 Abstentions 8

Point 1.10

Delete:

1.10. The EESC recommends that the text of Article 15(5) relating to the prima facie burden of proof be amended. It is sufficient that the whistleblower ‘provides evidence that he or she made a report’.

Reason

This recommendation is not based on the text of the draft opinion (7.1). While it could be contested, the principle of reversal of the proof has been neutrally stated in the text.

Outcome of the vote

In favour 93 Against 148 Abstentions 7

Point 1.11

Amend as follows:

1.11. In order to protect whistleblowers effectively from any kind of direct or indirect penalty, the implementation of the directive should be carefully monitored and assessed as to the effectiveness of the national frameworks. The EESC recommends that, under Article 15(6), compensation should not be referred to national law (variable), and that the directive should provide for full compensation for damages, without any ceiling, on the model of the United Kingdom legislation.

Reason

It is important that the sanction and compensation systems based on national frameworks fulfil the basic objectives of the directive as regards the protection of the whistleblower while respecting the principles of the national legal systems. This is one of the key issues to be monitored regarding the implementation of the directive.

Outcome of the vote

In favour 95 Against 143 Abstentions 9

Point 1.12

Amend as follows:

1.12. The EESC calls for clarification the deletion of Article 17(2), as it might create confusion between responsible whistleblowing and which is superfluous (penalties for defamation and false accusation s. already being provided for in national law).

Reason

See point 8.1.

Outcome of the vote