The European Whistleblowing Directive (Directive (EU) 2019/1937) was adopted by the European Union in October 2019 and aims to provide robust protection for individuals who report breaches of EU law in various sectors, including the public and private spheres. The Directive is designed to harmonize whistleblower protections across member states, ensuring that whistleblowers can report misconduct without fear of retaliation. The roots of the Directive ground on the reporting obligations regarding the financial realm (white collars’ crimes) and its goal is to protect adequately those individuals who choose to report illicit activities, in particular workers (according to Article 45(1) of the Treaty for the Functioning of the EU (TFEU)) and individuals somehow in relationship with the entity reported, as they are considered vulnerable subjects.
As per the general EU Law, Directives are not self-executive, meaning that they establish a minimum regulation to harmonize the EU Member States’ (MB) national law in a particular field. This implies that each MB will receive and implement the Directive and could provide for stricter rules or specific regimes for particular cases.
This report examines the Directive’s key elements, its applicability to the academic environment, and the potential grey areas and challenges it presents for academia.
Authors: Gianluigi M. Riva, Mariateresa Maggiolino, Enrico Basile
Introduction
Academic institutions are pillars of knowledge, research, and ethical standards, playing a vital role in shaping future generations and advancing society. However, like any other organization, universities and research institutions can face instances of misconduct, unethical behaviors, or violations of established laws and principles. In such cases, whistleblowing may serve as a critical mechanism for ensuring transparency, accountability, and integrity within the academic environment.
Whistleblowing in academia involves the reporting of illegal or harmful practices that may undermine the institution’s mission or reputation. It may potentially embrace unethical conducts if those are described and enforceable through an internal Code of Conduct, although the EU Directive does not comprehend such instances, which, therefore, are not covered by the regulations. However, the potential reporting practices could range from academic fraud, such as plagiarism or data fabrication, to serious issues like financial mismanagement, discrimination, or breaches of research ethics involving human or animal subjects, if with legal repercussions. The complex nature of academic settings, which often involve hierarchies and power imbalances, can make it difficult for individuals—be they students, faculty, or staff—to report wrongdoing without fear of retaliation.
These Whistleblowing Guidelines are designed to provide clear, practical steps for safely reporting misconduct in academic institutions, while emphasizing the legal protections available to whistleblowers. The goal is not to repeat information provided elsewhere, but to provide clear answers for practitioners in academia on how to deal with specific issues. For this reason, the present guidelines are formed by: i) a report condensing the Directive’s most important features and a synthetic comparative overview of the main national regulations on the theme; ii) a set of summary of already existing guidelines, opinions and documents aimed at providing light upon specific aspects of the regulation and implementation of WB practices; iii) a set of frequently asked questions (FAQ) to address the most specific issues concerning the application of the Directive within the academic environment. By establishing robust reporting mechanisms and fostering a culture of transparency, academic institutions can ensure that ethical practices are maintained, and whistleblowers are supported and protected throughout the process.
Several institutions have issued guidelines related to the implementation of the EU Whistleblower Protection Directive (Directive (EU) 2019/1937). Here’s an overview of key guidelines from government bodies and organizations:
1. European Commission Reports:
The European Commission plays a key role in monitoring the implementation of the Directive across EU member states. It has issued detailed guidance to ensure that whistleblowers have access to both internal and external reporting channels, and that reports are handled confidentially. The Commission also stresses the importance of protecting whistleblowers from retaliation and implementing penalties for non-compliance. Member States are encouraged to align their national laws with these guidelines and ensure effective transposition (European Commission).
2. Whistleblowing International Network (WIN):
WIN, a global whistleblower advocacy group, provides additional insights and recommendations for effectively implementing the Directive. They emphasize the importance of “early-stage” reporting without requiring proof of harm and encourage Member States to avoid burdensome procedural requirements that could deter whistleblowers. They also highlight the need for legal support and interim relief measures for whistleblowers facing retaliation (Whistleblowing International Network).
3. National Laws and Guidelines:
Different EU member states have implemented their own versions of the Directive, with variations in approach: EQS has issued a white paper on comparative assessment (EQS Integrity Line).
4. The European Data Protection Supervisor (EDPS) Guidelines:
The EDPS has issued its Guidelines on processing personal information within a whistleblowing procedure, which focuses specifically on the management of personal information and related data protection issues concerning whistleblowing activities (EDPS).
The Authority also issued several case-law Opinions:
5. Transparency International (TI):
TI, a network of more than 100 chapters worldwide and an international secretariat in Berlin, is a global movement that aims for a world in which government, business, civil society and the daily lives of people are free of corruption. Leading the fight against corruption, Transparency International has been working on the issue of Whistleblower Protection for many years, and one of its latest contributions was to issue “How Well do EU Countries Protect Whistleblowers?”, an effort to understand how well EU countries are protecting whistleblowers, having reviewed the whistleblower protection laws of 20 member states against key requirements provided and best practices.
Whistleblowing refers to the act of reporting wrongdoing, illegal activity, or unethical behavior within an organization. Whistleblowers typically report these activities to authorities, regulatory bodies, or media outlets when internal reporting mechanisms fail or are ineffective. In Europe, whistleblowers are protected under various legal frameworks to ensure they can report such issues without fear of retaliation.
Yes, whistleblowers are protected under the EU Whistleblower Protection Directive (2019/1937), which requires all member states to implement laws ensuring the protection of individuals who report violations of EU law. This directive covers a wide range of areas, including public procurement, financial services, environmental protection, and public health.
The EU Whistleblower Directive includes the following key protections:
Mandatory reporting channels: Employers with 50 or more employees must establish internal reporting mechanisms.
The EU Directive allows whistleblowers to report a wide range of issues, including but not limited to:
Individual member states may expand the scope of issues covered by the directive in their national laws.
Whistleblowers in Europe can report issues through three main channels:
Public Disclosure: If neither internal nor external reporting resolves the issue, or if there is an immediate risk of harm to the public interest, whistleblowers can disclose the information to the public, typically via the media.
The EU Whistleblower Directive covers a broad range of individuals who could be in a position to witness and report misconduct, including:
To comply with the EU Directive, organizations with 50 or more employees must:
Unlike in some countries, such as the U.S., where whistleblowers can receive financial rewards for reporting fraud (e.g., under the False Claims Act), the EU Directive does not provide monetary compensation for whistleblowers. However, whistleblowers who face retaliation or dismissal may be entitled to financial compensation through legal claims or reinstatement in their jobs.
Yes, whistleblowers can choose to remain anonymous when reporting an issue. Organizations and authorities are required to protect the confidentiality of the whistleblower’s identity. However, it is often more difficult to investigate anonymous reports, and anonymous whistleblowers may find it harder to seek protection if they face retaliation. The specific rules on anonymity also depend on the national regulation that implements the Directive.
If a whistleblower faces retaliation, they have the right to legal protection. This can include:
Retaliation can include dismissal, demotion, intimidation, or any adverse treatment linked to the whistleblower’s actions.
While all EU member states must implement the EU Whistleblower Protection Directive, the specific laws and procedures vary by country. Each member state has discretion in how it enacts the directive, meaning some countries may offer broader protections or have additional rules compared to others. It is essential to check the specific whistleblowing legislation in the country concerned.
Yes, employers who fail to establish internal reporting channels or who retaliate against whistleblowers can face legal penalties. These may include:
The exact penalties depend on the member state’s implementation of the directive.
Each EU country is required to designate independent authorities responsible for handling external whistleblower reports. These agencies ensure that reports are investigated, appropriate action is taken, and whistleblowers are protected. In some countries, these bodies are specialized agencies, while in others, the role is filled by existing regulatory or legal bodies.
In an academic environment, whistleblowing refers to the act of reporting unethical, illegal, or harmful practices within universities, research institutions, or educational organizations. This may include academic fraud (plagiarism or data falsification), harassment or discrimination, financial mismanagement, misuse of research funds, or violations of ethical standards in research involving human or animal subjects.
Common forms of misconduct in academic institutions include:
Academic favoritism or nepotism: Unfair treatment or favoritism in hiring, grading, or promotions.
Anyone who witnesses or is aware of wrongdoing in an academic setting can be a whistleblower. This includes:
The EU Whistleblower Protection Directive (2019/1937) applies to academic institutions as well. Whistleblowers are protected from retaliation, such as dismissal, demotion, or any adverse treatment, for reporting wrongdoing. Academic institutions with 50 or more employees must establish internal reporting mechanisms. These laws ensure that whistleblowers in academia can report misconduct confidentially and without fear of reprisal.
Under EU law, academic institutions with 50 or more employees are required to establish:
These mechanisms should be accessible to both staff and students.
If internal channels fail or if there is a risk of retaliation, whistleblowers in academic institutions can:
Whistleblowers in academia may face retaliation in the form of:
To protect themselves, whistleblowers should:
Yes, students can report academic misconduct, such as fraud in research or unethical treatment by faculty members. The same legal protections apply to students as to staff members under EU law. Students who whistleblow are protected from retaliatory actions like unfair grading, exclusion from academic opportunities, or expulsion. Institutions are obligated to ensure the confidentiality of the student’s identity and address the issue in a fair and transparent manner.
If a whistleblower’s claims are made in good faith but are later found to be untrue, they are still protected from retaliation under EU law. However, if the claims are made with malicious intent or without any factual basis (i.e., false accusations), the whistleblower may face disciplinary action or legal consequences. It is crucial for individuals to ensure that they have substantial evidence before making a report.
While there is no single body responsible for all academic whistleblower cases, several institutions may handle these reports depending on the nature of the misconduct:
To create a supportive environment, academic institutions should:
Article 8 of the Directive provides a duty for the organizations that meet the conditions to establish a channel. As the Directive is implemented nationally, failure to comply is subject to national sanctions.
The Directive provides several definitions at Article 5. The definitions serve the need of clarifying formal and legal concepts within the application of the regime. National regulations may provide more detailed and expanded definitions. However, consider that:
