Whistleblowing has been one of the big employment law topics in 2021. We have also reported on this in several articles: For example, on the implementation in Poland and the impact on the UK. Now the year is coming to an end and the Whistleblowing Directive 2019/1937 should have been transposed into national law by national legislators in all EU member states by 17 December 2021.
This has not happened in a large number of member states - including Germany, France, Poland, Italy and others. This means that there is no binding implementation of the whistleblowing regulations with the result of a phase of uncertainty until the member states have fulfilled their implementation obligations.
How this uncertainty should be dealt with and which legal regulations apply during this period is presented in our following article.
I. Status quo: No direct effect of the Directive in the absence of transposition
The Whistleblowing Directive contains a large number of important provisions. At its core is the obligation to set up internal and external reporting channels (Art. 7 et seq.) and mandatory measures to protect whistleblowers (Art. 19 et seq.). The Directive thus contains, on the one hand, organisational obligations on the employer and, on the other hand, a comprehensive prohibition of measures with regard to all whistleblowers.
However, unlike regulations, directives do not apply directly but require implementation by the member states (cf. Art. 288 (3) TFEU). They therefore only become national law if the provisions of the directive are transposed into national law. The method of transposition is nevertheless open. It is only important that the protection intended by the directive is granted efficiently. The national legislator may also grant protection that goes beyond the directive, but it must not fall behind of the directive's requirements.
If a member state fails to transpose by the transposition deadline, infringement proceedings are conceivable. Furthermore, an affected citizen can assert state liability claims against the state (ECJ, C-6/90 and C-9/90,  ECR 5357ff.). Despite all this, however, there are no cases of complete direct effect of a non-implemented directive.
II. Exception: Limited direct effect recognised
However, it would be contradictory if the member states were to benefit from the failure to transpose the directive into national law in breach of the Treaty. For this reason, it is recognised that, in exception to the above, a direct effect of directives in the relationship citizen - state (horizontal relationship) can be considered.
According to the case law of the ECJ, this should at least be possible if the transposition period has expired and the directive is self-executing, i.e. concrete requirements and consequences can be derived from it. In concrete terms, this means that citizens can directly invoke the directive against the state and derive claims from it.
This also has far-reaching consequences for the area of whistleblowing: As employers the member states are directly bound by the provisions of the Directive, so that in particular any retaliation of employees is inadmissible. However, the state itself can be an employer in various forms: Directly, but also in the form of state schools, authorities, universities or other state institutions. All employees working there can therefore directly invoke the protection of the Directive.
However, at least in horizontal relations, i.e. between citizens and private employers, direct application of directives is not possible, so that non-implementation here leads to the legal protection of employees being minimised and the scope of obligations of companies being limited.
III. In any case: Consideration by national courts in interpreting indeterminate standards
Nevertheless, if the Directive is not transposed, it would be completely wrong not to assign any significance to it in the relationship between private employers and employees. In principle, the national legislator is obliged to transpose directives, but also the national (labour) courts can and should always interpret the existing national law in conformity with the directive after the expiry of the transposition period of the directive and thus help the directive to achieve the greatest possible effectiveness (effet utile) - even without explicit transposition.
In concrete terms, this means that national courts must take the above-mentioned standards into account when reviewing the legality of retaliations and dismissals. Only where national law is unambiguous and does not allow for a corresponding consideration of the values of the Whistleblowing Directive, in particular because this is incompatible with the clear wording of national law, such an interpretation in conformity with Union law is ruled out. However, since the review of the lawfulness of dismissals and disciplinary measures is carried out on the basis of a large number of (undefined) criteria, it can be assumed that an interpretation in conformity with Union law is possible as a rule. The gateways for this under German law would be, for example, the concept of social justification of the termination pursuant to Sec. 1 (1) and (2) German Protection Against Unfair Dismissal Act as well as the prohibition of disciplinary measures under Sec. 612a German Civil Code. Such indeterminate concepts are also known from other member states, so that it is to be expected that the case law will also take into account the values of the Directive here.
It is also to be expected that courts will find employer sanctions against (alleged) whistleblowers inadmissible if a reporting system required by the Directive was not in place.
IV. Practical consequences
This shows that even in EU member states where the Directive has not yet been implemented, whistleblowing is very important and the requirements of the Directive must be complied with.
This applies first and foremost to the state itself as an employer, but also to private employers, since here in any case the national courts are required to make the Directive (even without statutory transposition) as effective as possible.
Companies are therefore required to take the provisions of the Directive into account now - even if it is not directly effective and has not yet been implemented in some member states. Trusting that "nothing will happen" because a legal regulation is (still) lacking would be extremely risky and is not at all recommended.
For this reason, it is strongly recommended to use the transposition deadline of 17 December 2021 as an opportunity to check whether appropriate reporting systems have already been set up and, if not, to set them up promptly.
It is also clear that it is extremely unlikely that the member states will permanently disregard the provisions of the Directive, so that it is to be expected that national regulations will soon be in place everywhere.
With an increased focus on the ethical and responsible behaviour of organisations, DWF experts from across our global business are coming together on Tuesday 1st March 2022 in a webinar to discuss the potential to impact and implications that whistleblowing can have across multiple business channels.