of the Committee of Ministers to member States
on the protection of whistleblowers
(Adopted by the Committee of Ministers on 30 April 2014,
at the 1198th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Recalling that the aim of the Council of Europe is to achieve a greater unity between its members, inter alia, for the purpose of safeguarding and realising the ideals and principles which are their common heritage;
Considering that promoting the adoption of common rules in legal matters can contribute to the achievement of the aforementioned aim;
Reaffirming that freedom of expression and the right to seek and receive information are fundamental for the functioning of a genuine democracy;
Recognising that individuals who report or disclose information on threats or harm to the public interest (“whistleblowers”) can contribute to strengthening transparency and democratic accountability;
Considering that appropriate treatment by employers and the public authorities of public interest disclosures will facilitate the taking of action to remedy the exposed threats or harm;
Bearing in mind the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) and the relevant case law of the European Court of Human Rights, in particular in relation to Article 8 (respect for private life) and Article 10 (freedom of expression), as well as the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108);
Bearing in mind the Council of Europe’s Programme of Action Against Corruption, the Council of Europe Criminal Law Convention on Corruption (ETS No. 173) and the Council of Europe Civil Law Convention on Corruption (ETS No. 174) and, in particular, respectively Articles 22 and 9 thereof, as well as the work carried out by the Group of States against Corruption (GRECO);
Taking note of Resolution 1729 (2010) of the Parliamentary Assembly in which the Assembly invites member States to review their legislation concerning the protection of whistleblowers bearing in mind a series of guiding principles;
Taking note of the compendium of best practices and guiding principles for legislation on the protection of whistleblowers prepared by the OECD at the request of the G20 Leaders at their Seoul Summit in November 2010;
Considering that there is a need to encourage the adoption of national frameworks in the member States for the protection of whistleblowers based on a set of common principles,
Recommends that member States have in place a normative, institutional and judicial framework to protect individuals who, in the context of their work-based relationship, report or disclose information on threats or harm to the public interest. To this end, the appendix to this recommendation sets out a series of principles to guide member States when reviewing their national laws or when introducing legislation and regulations or making amendments as may be necessary and appropriate in the context of their legal systems.
To the extent that employment relations are regulated by collective labour agreements, member States may give effect to this recommendation and the principles contained in the appendix in the framework of such agreements.
Appendix to Recommendation CM/Rec(2014)7
For the purposes of this recommendation and its principles:
- “whistleblower” means any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in the public or private sector;
- “public interest report or disclosure” means the reporting or disclosing of information on acts and omissions that represent a threat or harm to the public interest;
- “report” means reporting, either internally within an organisation or enterprise, or to an outside authority;
- “disclosure” means making information public.
- Material scope
- The national normative, institutional and judicial framework, including, as appropriate, collective labour agreements, should be designed and developed to facilitate public interest reports and disclosures by establishing rules to protect the rights and interests of whistleblowers.
- Whilst it is for member States to determine what lies in the public interest for the purposes of implementing these principles, member States should explicitly specify the scope of the national framework, which should, at least, include violations of law and human rights, as well as risks to public health and safety and to the environment.
- Personal scope
- The personal scope of the national framework should cover all individuals working in either the public or private sectors, irrespective of the nature of their working relationship and whether they are paid or not.
- The national framework should also include individuals whose work-based relationship has ended and, possibly, where it is yet to begin in cases where information concerning a threat or harm to the public interest has been acquired during the recruitment process or other pre-contractual negotiation stage.
- A special scheme or rules, including modified rights and obligations, may apply to information relating to national security, defence, intelligence, public order or international relations of the State.
- These principles are without prejudice to the well-established and recognised rules for the protection of legal and other professional privilege.
III. Normative framework
- The normative framework should reflect a comprehensive and coherent approach to facilitating public interest reporting and disclosures.
- Restrictions and exceptions to the rights and obligations of any person in relation to public interest reports and disclosures should be no more than necessary and, in any event, not be such as to defeat the objectives of the principles set out in this recommendation.
- Member States should ensure that there is in place an effective mechanism or mechanisms for acting on public interest reports and disclosures.
- Any person who is prejudiced, whether directly or indirectly, by the reporting or disclosure of inaccurate or misleading information should retain the protection and the remedies available to him or her under the rules of general law.
- An employer should not be able to rely on a person’s legal or contractual obligations in order to prevent that person from making a public interest report or disclosure or to penalise him or her for having done so.
- Channels for reporting and disclosures
- The national framework should foster an environment that encourages reporting or disclosure in an open manner. Individuals should feel safe to freely raise public interest concerns.
- Clear channels should be put in place for public interest reporting and disclosures and recourse to them should be facilitated through appropriate measures.
- The channels for reporting and disclosures comprise:
– reports within an organisation or enterprise (including to persons designated to receive reports in confidence);
– reports to relevant public regulatory bodies, law enforcement agencies and supervisory bodies;
– disclosures to the public, for example to a journalist or a member of parliament.
The individual circumstances of each case will determine the most appropriate channel.
- Employers should be encouraged to put in place internal reporting procedures.
- Workers and their representatives should be consulted on proposals to set up internal reporting procedures, if appropriate.
- As a general rule, internal reporting and reporting to relevant public regulatory bodies, law enforcement agencies and supervisory bodies should be encouraged.
- Whistleblowers should be entitled to have the confidentiality of their identity maintained, subject to fair trial guarantees.
- Acting on reporting and disclosure
- Public interest reports and disclosures by whistleblowers should be investigated promptly and, where necessary, the results acted on by the employer and the appropriate public regulatory body, law enforcement agency or supervisory body in an efficient and effective manner.
- A whistleblower who makes an internal report should, as a general rule, be informed, by the person to whom the report was made, of the action taken in response to the report.
VII. Protection against retaliation
- Whistleblowers should be protected against retaliation of any form, whether directly or indirectly, by their employer and by persons working for or acting on behalf of the employer. Forms of such retaliation might include dismissal, suspension, demotion, loss of promotion opportunities, punitive transfers and reductions in or deductions of wages, harassment or other punitive or discriminatory treatment.
- Protection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy.
- A whistleblower should be entitled to raise, in appropriate civil, criminal or administrative proceedings, the fact that the report or disclosure was made in accordance with the national framework.
- Where an employer has put in place an internal reporting system, and the whistleblower has made a disclosure to the public without resorting to the system, this may be taken into consideration when deciding on the remedies or level of protection to afford to the whistleblower.
- In legal proceedings relating to a detriment suffered by a whistleblower, and subject to him or her providing reasonable grounds to believe that the detriment was in retaliation for having made the report or disclosure, it should be for the employer to establish that the detriment was not so motivated.
- Interim relief pending the outcome of civil proceedings should be available for persons who have been the victim of retaliation for having made a public interest report or disclosure, particularly in cases of loss of employment.
VIII. Advice, awareness and assessment
- The national framework should be promoted widely in order to develop positive attitudes amongst the public and professions and to facilitate the disclosure of information in cases where the public interest is at stake.
- Consideration should be given to making access to information and confidential advice free of charge for individuals contemplating making a public interest report or disclosure. Existing structures able to provide such information and advice should be identified and their details made available to the general public. If necessary, and where possible, other appropriate structures might be equipped in order to fulfil this role or new structures created.
- Periodic assessments of the effectiveness of the national framework should be undertaken by the national authorities.