Direct effect of the European whistleblower prodection directive
- Veronika Odrobinová
- Martina Šumavská
On 23 October 2019, Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons who report breaches of Union law was adopted. This Directive should have been implemented by Member States in their national law within the transposition period ending on 17 December 2021. Today, however, it is clear that the Directive will not be implemented in the Czech Republic on time. Nevertheless, the Czech Republic will not be able to avoid some of its obligations under the Directive. To facilitate the situation for the addressees of the obligations under the Directive, on 4 November 2021 the Ministry of Justice issued a methodology for direct applicability of the Directive (link).
Direct effect of the directive
According to the methodology of the Ministry of Justice, if the Directive is not transposed properly (in this case not on time), a possible consequence is the direct effect of the Directive, on the basis of which rights and obligations are created directly and national courts and other public authorities are obliged to protect them. According to the methodology, the direct effect of the Directive affects only public law subjects (not all addressees of the Directive – the private sector is therefore not affected yet), namely the following public authorities:
- state authorities
- local authorities – authorities of regions and municipalities with more than 10,000 inhabitants (e.g. regional authorities, city/ town/ municipal authorities)
- other public institutions (e.g. General Health Insurance Company, public universities, ČEZ or the Technical Inspection Station).
The direct effect of the Directive will be activated as early as 18 December 2021 in view of the expiry of the transposition deadline. From that date, the above-mentioned public authorities are obliged to fulfil their obligations under the Directive.
Obligations of obliged entities
The main obligations under the Directive include, in particular, the establishment of an internal notification system and the setting up of processes for handling, processing and storing notifications. As a result of the direct effect of the Directive, the above-mentioned public authorities are therefore obliged in particular to:
- identify the respective person responsible for receiving and handling the notification
- provide remote access to information relating to notification, identification of the person concerned, his/her telephone number and e-mail or another address for service
- allow the whistleblower to submit a notification through the internal notification system in writing or orally
- ensure that only the appropriate person has access to the notifications made and protect the identity of the notifier and other persons and information contained in the notification
- ensure proper assessment of the validity of the notification and its veracity by a competent person
- notify the notifier of the receipt of the notification within 7 days of its submission and of the results of the assessment of the notification within 3 months of the acknowledgement of receipt of the notification
- take appropriate measures to remedy or prevent the infringement following the notification.
To protect whistleblowers, the Directive also stipulates a prohibition on retaliation, which public authorities are obliged to respect. Such measures include any direct or indirect act or omission occurring in a work context that could cause unjustified harm to the whistleblower (e.g., termination of employment, non-renewal of a fixed-term contract, reduction in pay/salary, non-granting of a personal bonus). In the event of a violation of the prohibition on retaliation, the whistleblower will be able to claim compensation for damage or compensation for non-pecuniary damage.
In view of the imminent activation of the direct effect of the Directive, it is therefore high time for the relevant public authorities to prepare for the obligations under the Directive that will apply to them from 18 December 2021.