Enforcing Whistleblower Protection: Interim relief, reversal of burden of proof, non-judicial protection
When it comes to enforcing whistleblower protection, several measures exist at the disposal of lawyers and protection authorities. Interim relief, reversal of the burden of proof and non-judicial protection procedures were just a few discussed by the speakers of Panel III: Enforcing Whistleblower Protection of the European Whistleblowing Conference, moderated by Dr Lauren Kierans, EWI’s Co-Founder and Director of Education.
Christel Mercadé Piqueras, legal officer at the Unit on Fundamental Rights Policies of the Directorate-General for Justice and Consumers (DG JUST) of the European Commission, described the protection regime granted by the Whistleblower Directive. There are, for example, ex ante measures, such as obligations to establish reporting channels and to ensure confidentiality, aimed at preventing retaliation, but also interim relief, reversal of the burden of proof, and exemption from different forms of liability.
“The directive relies on existing legal remedies at the national level and, with the exception of the reversal of the burden of proof, the others rely on a set of existing legal remedies with the objective that whistleblowers have full compensation and access to effective remedies so they can combat the adverse effects of retaliation.”
Regarding the reversal of the burden of proof, Mercadé Piqueras, who was a member of the team drafting and negotiating the Whistleblower Directive, explained that, if a whistleblower qualifies for protection under the conditions of the directive, there should be a presumption that, whatever measure the person suffers must be considered retaliation, unless the employer can demonstrate otherwise. In terms of interim relief, she highlighted that, in some cases, it “may be a crucial measure to establish when you have a case of retaliation”.
Zooming in on Romania: Interim relief
Highlighting how interim relief is applied, Radu Nicolae, President of the Association for Cooperation and Sustainable Development, said that retaliation is a common challenge he encounters in his work of supporting whistleblowers in Romania. He explained that, in Romania, judges can order the suspension of the retaliatory measures and restore the whistleblower to their original position without requiring a ruling on the merits of the case. “In fact, judges have a broad discretion in ordering any measures they deem necessary to put an end to the retaliation”, said Nicolae, who is also Romania’s country editor for the EU Whistleblowing Monitor.
“An important element when we face retaliation is to have access to interim relief. In this case, the burden of proof is shifted to the employer, who must demonstrate that the adverse measure was justified by a reason other than the whistleblower’s report.”
Zooming in on Belgium: Non-judicial protection procedure
In Belgium, whistleblowers who face retaliation can file a complaint with the Federal Ombudsman, who seeks protection through a non-judicial protection procedure. The way this works, explained Kim Anh Nguyen, Coordinator – Forensic Auditor at Belgium’s Federal Ombudsman, is the following: the Federal Ombudsman intervenes with the employer who must prove that the negative measures are unrelated to the whistleblower’s report; failing to do so will lead to the Federal Ombudsman asking for the negative measures to be revoked and for the whistleblower to be compensated through interim relief if need be. However, “our recommendations are non-binding so it is really to the good will of the employer”, added Nguyen.
Speaking to the success of this measure, Nguyen said that it has been very successful in the public sector. “In the public sector we had a lot of success enforcing this non-judiciary protection procedure because we also have the ability to issue recommendations to the minister if the employer does not follow [our] proposal and we can also inform the parliament”, she said. On the other hand, “in the private sector we see some challenges because big employers are more keen to go directly to court, they have the means to pay their top lawyers and go against the whistleblower who is in a more vulnerable position”, said Nguyen.
“Non-judicial protection procedure is something that should be worked on because it avoids long, tedious and costly procedures for both parties but especially for the whistleblower who is in a more vulnerable position.”
Zooming in on Czech Republic
In stark contrast, Kristian Leko, partner at R&L Law firm and an attorney who represented whistleblowers in high-profile cases in the Czech Republic, shared that, in his country, protection of civil servants who blow the whistle “is very limited”. According to him, this occurs because when a public servant blows the whistle, a “series of quite brutal retaliation measures” are enacted and what follows is a tedious and lengthy court procedure that can be postponed “by many months”.
“Is this really what protection of whistleblowers should look like? I represented only whistleblowers in the public sector. They do not want anything wrong to happen and that is why they blow the whistle. They do not care about the money, they basically care about not being dismissed from their role. Unfortunately, from my experience, it is very difficult to do so.”
This event, led by the European Whistleblowing Institute, took place in Brussels, on 4 April, and was a collaboration with the Network of European Integrity and Whistleblowing Authorities (NEIWA), Transparency International (TI), Transparency International Greece, Whistleblowing International Network (WIN), EDHEC Business School, University of Galway, and Georg-August-University Göttingen. This event is part of Project BRIGHT 101143234, which is co-funded by the European Commission.
