Former CJEU judge calls for EU Member States to do more in protecting whistleblowers
Dr Ninon Colneric, former judge at the Court of Justice of the EU, was the keynote speaker at the European Whistleblowing Conference. 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.
Member States of the European Union (EU) could be doing more to enhance whistleblower protection, argued a former judge at the Court of Justice of the EU (CJEU). Speaking at the European Whistleblowing Conference, where she was the keynote speaker, Dr Ninon Colneric called for stronger protection of whistleblowers and highlighted their role in a democratic society.
Noting that, while the EU is “restricted by its limited competences”, Colneric argued that Member States “could do more, in particular with respect to public disclosure”. “But Member States, with very few exceptions, are not the spearhead of whistleblower protection”, she added.
Delays in transposition are only part of the problem. After the entry into force of the Whistleblower Directive, Member States had two years to transpose it into their national laws. As Colneric pointed out, in January 2022, the European Commission started infringement proceedings against 24 countries for not fully transposing the Directive and informing the Commission. Of these, “six Member States were actually taken to court”.
“I only remember one Directive where implementation was so tardy on a large scale, namely, the equal pay directive for men and women of 1975. In both cases, legislation was not just confirming a consensus that had already developed in society but trying to effectuate social change.”
On the role of whistleblowers, Colneric criticized that, from the perspective of the Directive, “whistleblowers are just a resource for law enforcement but this instrumental approach to whistleblowing falls short of fully grasping its role in a democratic society”. “We can be very grateful for the courageous whistleblowers and journalists who reveal [the dark secrets of the powerful] to the public because, in a democratic society, the public needs to know them”, she emphasized.
Nonetheless, Colneric considers that the adoption of the Whistleblower Directive was “an important step” as it reflects a shift in the public’s perception of whistleblowers. “However, the overall very late transposition and the many deficiencies of the transposing laws show that there was no wholehearted support for the approach of this measure”, she concluded.
Law is increasingly under attack
In her speech, titled “Ethos of Allegiance vs. Enlightened Ethics”, Colneric, who served as the first female judge from Germany at the CJEU, paid tribute to whistleblowers such as Edward Snowden and Israeli whistleblowers who detailed abuse of Palestinians in a detention center. “All these whistleblowers follow the principle of enlightened ethics but what can we do to protect people like them? Should we admit that, in such cases, we reach the limits of the law? The law is increasingly under attack”, she emphasized.
Colneric went on to cite a couple of examples: even though the International Criminal Court (ICC) issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, citing allegations of war crimes and crimes against humanity, German Chancellor Friedrich Merz said he will find “ways and means” for Netanyahu to visit Germany; and the United States has imposed sanctions on the ICC.
In her welcome address, Dr Vigjilenca Abazi, EWI’s Co-Founder and Executive Director, also noted that “we live in deeply fragile political times [and] it is also a time where [there is] deep mistrust of institutions”. That is why, she added, whistleblowing is, more than ever, an act of courage.
“Whistleblowing is not merely a relationship of an employee with their employer but much more an act of democracy, an act of courage that calls for accountability, an act that talks about speaking up. And more than ever before, speaking up takes an incredible amount of courage.”
