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Whistleblower protection: EU Commission sets new, EU-wide rules

MD Staff

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Recent scandals such as Dieselgate, Luxleaks, the Panama Papers or the ongoing Cambridge Analytica revelations show that whistleblowers can play an important role in uncovering unlawful activities that damage the public interest and the welfare of our citizens and society.

Today’s proposal will guarantee a high level of protection for whistleblowers who report breaches of EU law by setting new, EU-wide standards. The new law will establish safe channels for reporting both within an organisation and to public authorities. It will also protect whistleblowers against dismissal, demotion and other forms of retaliation and require national authorities to inform citizens and provide training for public authorities on how to deal with whistleblowers.

First Vice-President Frans Timmermans said: “Many recent scandals may never have come to light if insiders hadn’t had the courage to speak out. But those who did took enormous risks. So if we better protect whistleblowers, we can better detect and prevent harm to the public interest such as fraud, corruption, corporate tax avoidance or damage to people’s health and the environment. There should be no punishment for doing the right thing. In addition, today’s proposals also protect those who act as sources for investigative journalists, helping to ensure that freedom of expression and freedom of the media are defended in Europe.”

Věra Jourová, Commissioner for Justice, Consumers and Gender Equality added: “The new whistleblowers’ protection rules will be a game changer. In the globalised world where the temptation to maximise profit sometimes at the expense of the law is real we need to support people who are ready to take the risk to uncover serious violations of EU law. We owe it to the honest people of Europe.

Whistleblowers can help to detect, investigate and sanction abuses of EU law. They also play an important role in enabling journalists and the free press to play their fundamental role in our democracies. That is why whistleblowers need proper protection against intimidation and/or retaliation.Citizenswho uncover illegal activities should not be punished as a consequence of their action. But in reality, many of them pay for their action with their jobs, their reputation or even their health: 36% of workers who reported misconduct experienced retaliation(2016 Global Business Ethics Survey). Protecting whistleblowers will also help safeguard freedom of expression and media freedom, and is essential to protect the rule of law and democracy in Europe.

Protection for a wide range of EU law breaches

Today’s proposal ensures EU-wide protection for blowing the whistle on breaches of EU legislation in the fields of public procurement; financial services, money laundering and terrorist financing; product safety; transport safety; environmental protection; nuclear safety; food and feed safety, animal health andwelfare; public health; consumer protection; privacy, data protection and security of network and information systems. It also applies to breaches of EU competition rules, violations and abuse of corporate tax rules and damage to the EU’s financial interests. The Commission encourages Member States to go beyond this minimum standard and establish comprehensive frameworks for whistleblower protection based on the same principles.

Clear Mechanisms and Obligations for Employers

All companies with more than 50 employees or with an annual turnover of over €10 million will have to set up an internal procedure to handle whistleblowers’ reports. All state, regional administrations and municipalities with over 10,000 inhabitants will also be covered by the new law.

The protection mechanisms will have to set up must include:

  • Clear reporting channels, within and outside of the organisation, ensuring confidentiality;
  • A three tier reporting system of:
  • Internal reporting channels;
  • Reporting to competent authorities – if internal channels do not work or could not reasonably be expected to work (for example where the use of internal channels could jeopardise the effectiveness of investigative actions by the authorities responsible);
  • Public/media reporting – if no appropriate action is taken after reporting through other channels, or in case of imminent or clear danger to the public interest or irreversible damage;
  • Feedback obligations for authorities and companies, who will have to respond and follow-up to the whistleblowers’ reports within 3 months for internal reporting channels;
  • Prevention of retaliation and effective protection: all forms of retaliation are forbidden and should be sanctioned. If a whistleblower suffers retaliation, he or she should have access to free advice and adequate remedies (for example measures to stop workplace harassment or prevent dismissal). The burden of proof will be reversed in such cases, so that the person or organisation must prove that they are not acting in retaliation against the whistleblower. Whistleblowers will also be protected in judicial proceedings, in particular through an exemption from liability for disclosing the information.

Effective Safeguards

The proposal protects responsible whistleblowing genuinely intended to safeguard the public interest. It therefore includes safeguards to discourage malicious or abusive reports and prevent unjustified reputational damage. Those affected by a whistleblower’s report will fully enjoy the presumption of innocence, the right to an effective remedy, a fair trial, and the right of defence.

Background

Protection given to whistleblowers across the EU is currently fragmented and uneven. Only 10 EU Member States currently ensure that whistleblowers are fully protected. In the remaining countries, the protection granted is partial and only applies to specific sectors or categories of employee.

The Commission’s proposal builds on the 2014 Council of Europe Recommendation on Protection of Whistleblowers, which 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” and sets out principles to guide states when introducing or reviewing such frameworks.

The Council encouraged the Commission to explore the possibility of future EU action in its Conclusions on Tax Transparency of 11 October 2016. Civil society organisations and trade unions have consistently called for EU-wide legislation to protect whistleblowers acting in the public interest.

The Commission committed to take action to protect whistleblowers, as journalist sources, at the second Annual Colloquium on Fundamental Rights in November 2016, which was on the theme of ‘Media Pluralism and Democracy’.

Strengthening whistleblower protection also gives effect to the Commission’s commitment to put a stronger focus on enforcement of EU law, as set out in its 2016 Communication on EU Law: Better Results through Better Application

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Dayton Peace Accord 23 Years On: Ensured Peace and Stability in Former Yugoslavia

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For the past twenty-three years life has been comparatively peaceful in the breakaway republics of the former Yugoslavia. The complicated civil war that began in Yugoslavia in 1991 had numerous causes and began to break up along the ethnic lines. The touching stories and the aftermath effects of the breakaway republics of Bosnia- Herzegovina, Croatia and in Kosovo are still unfolding. Though the numbers of deaths in the Bosnia- Herzegovina conflict in former Yugoslavia are not known precisely, most sources agree that the estimates of deaths vary between 150,000 to 200,000 and displaced more than two million people. During the conflict a Srebrenica a North-eastern enclave of Bosnia once declared as a United  Nations  (UN ) safe area” saw one of the worst atrocity since second world war.

It has been estimated that more than 8,000 Muslim Bosniaks were massacred in Srebrenica and it was one of the most brutal ethnic cleansing operations of its kind in modern warfare. The US brokered peace talks revived the a peace process between the three warring factions in Bosnia- Herzegovina. For Peace in Bosnia and Herzegovina a United States (US ) -brokered peace deal reached in Dayton on 21st November 1995. In a historic reconciliation bid on 14 December 1995 , the Dayton Peace Accord was signed in Paris, France, between Franjo Tudjman president of the Republic of Croatia and Slobodan Milosevic president of the Federal Yugoslavia (Serbia and Montenegro), Alija Izetbegovic, president of the Republic of Bosnia-Herzegovina.

When conflict in Bosnia- Herzegovina, Croatia ended, the reconciliation began between ethnically divided region. The US played a crucial role in defining the direction of the Peace process. In 1996, North Atlantic Treaty Organization (NATO) -led 60,000 multinational peace enforcement force known as the Implementation Force (IFOR)) was deployed to help preserve the cease-fire and enforce the treaty provisions. Thereafter, the Court was established by Resolution 808 and later, Resolution 827 of the United Nations Security Council, which endorsed to proceed with setting up of the International Criminal Tribunal for the former Yugoslavia (ICTY) to try crimes against humanity . International Criminal Tribunal for the Former Yugoslavia (ICTY) was the first United Nations (UN) war crimes tribunal of its kind since the post-second world war Nuremberg tribunal.

In the late 1990’s, as the political crisis deepened a spiral of violence fuelled the Kosovo crisis between the Kosovo Liberation Army (KLA) and the Yugoslav forces. Unlike the Bosnia- Herzegovina, Kosovo was a province of Serbia, of former Yugoslavia that dates back to 1946, when Kosovo gained autonomy as a province within Serbia. It is estimated that more than 800,000. Kosovos were forced out of Kosovo in search of refuge and as many as 500,000 more were displaced within Kosovo.

Subsequent t hostilities in Kosovo the eleven week air campaign led by NATO (North Atlantic Treaty Organisation) against Yugoslavia in 1999 the Yugoslavian forces pulled troops out of Kosovo NATO. After the war was over, the United Nations Security Council, under the resolution 1244 (1999) approved to establish an international civil presence in Kosovo, known as the United Nations Interim Administration Mission in Kosovo (UNMIK). Nevertheless UNMIK regulation No 1999/24 provided that the Law in Force in Kosovo prior to March 22, 1989 would serve as the applicable law for the duration of the United Nations Interim Administration Mission in Kosovo (UNMIK).

In this  context reconciliation is a key to national healing of wounds after ending a violent conflict. Healing the wounds of the past and redressing past wrongs is a process through which a society moves from a divided past to a shared future. Over the years in Serbia, Bosnia- Herzegovina, Croatia and in Kosovo the successful peace building processes had happened. The success of the peace building process was possible because of participation of those concerned, and since appropriate strategies to effectively approach was applied with all relevant actors. The strengthening of institutions for the benefit of all citizens has many important benefits for the peace and stability of former Yugoslavia. Hence, the future looks bright for the Balkan states of Serbia, Bosnia- Herzegovina, Croatia and Kosovo.

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Hungarian Interest, Ukraine and European Values

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Diplomatic conflicts that have recently arisen between Hungary and its neighboring countries and the European Union as a whole most clearly show the new trend in European politics. This trend is committing to national and  state values of a specific  European country, doubting  the priority of supranational  interests within the European Union. Political analyst Timofey Bordachev believes that “the era of stale politics and the same stale politicians, who make backstage decisions based on the“ lowest common denominator,” are finally coming to an end. Politicians with a new vision of the world order come to power, such as Hungarian Prime Minister Viktor Orban, Austrian Federal Chancellor Sebastian Kurtz, or the new head of the Italian Interior Ministry, leader of the right-wing League of the North Party, Matteo Salvini ”.

It is not the first year that Hungary is trying to protect the interests of its citizens and the state from external influence, to protect the Hungarians in the territory of neighbouring states  by establishing for this  a special position (Commissioner  for the development of the Transcarpathian region of Ukraine), to determine relations with other countries on the basis of their attitude to the rights of Hungarians. This is how conflicts with the European Union arose, after Hungary refused to let migrants into the country, in the same manner, a conflict  arose with Ukraine, which is trying to build a state ideology, based on nationalism, which a priori does not provide for the proper level of realization and protection of the rights of non-titular nations.

In relation to Hungary, Ukraine follows the same policy as in relation to Russia – to initiate various accusations, to call for punishment, to talk about the inconsistency with European values of the Hungarian policy under the leadership of  Orban. Doing so Kiev has its multifaceted interest: cooperation with NATO and the EU, support  for any decisions of Brussels, the anti-Russian course, domestic policy based on the nationalist  ideology. And in all these areas  Hungary poses  a problem for Ukraine. In the description of relations with Hungary  Kiev even  uses the word “annexation“.

Hungary is hardly planning to seize any Ukrainian territory, but on what  grounds Ukraine falsely accuses Hungary of its annexation intentions in relation to Transcarpathia?  The Ukrainian side highlights several positions:

Issuing Hungarian passports  to Ukrainian citizens (ethnic Hungerians)

This  is an old story, it has come to light again recently due to the growth of Ukrainian nationalism. Moreover,  there are concerns about the implementation by Hungary of the “Crimean scenario” in relation to Transcarpathia.

The Hungarian government has created the position of  “Commissioner  for the development of Ukraine’s Transcarpathian region and the program for the development of kindergartens in the Carpathian region”.

Ukraine demanded an explanation. A note of protest was delivered to the Hungarian Charge d’Affaires in Ukraine, and the Foreign ministers of Ukraine and Hungary had a telephone conversation on the problem. Hungary continues to ignore the requirements of Kiev.

Ukraine fears further disintegration processes

At the same time, in Kiev there is no understanding  of the fact that combining the ideology of nationalism with the country’s national diversity and European integration is hardly possible.

Ukrainian experts note the growth of separatism in the Transcarpathian region, as well as the “strange behavior” of the governor, who plays on the side of Hungary. They also complain that “pro-Ukrainian ideology”(?) is not being сonsolidated in Transcarpathia, and this region is not controlled and monitored by  the Ministry of information. In a word, the state is losing control over the territory, which it neither develops nor controls. Such behavior of the governor and the region’s residents may indicate that the state is not sufficiently present in the lives of residents of Transcarpathia, and this a financial and humanitarian drawback they compensate with the help of Hungary, – experts believe.

Apparently, Ukraine is unable to reach an agreement with Hungary as relations are tense. In response to the Ukrainian law on education, adopted in the fall of 2017, which infringes the rights of national minorities, Budapest blocked another, the third, Ukraine-NATO meeting. Ukraine witnessed this embarrassing  situation  in April 2018.  At the same time elections were held in Hungary, in  which Viktor Orban’s party won a majority in the parliament. Such a tough stance of Budapest in relation to the Ukrainian educational policy Kiev considered to be just a sign of electoral populism. However, this was a mistake.

Viktor Orban’s victory in spring 2018 was convincing, and a convincing victory means obvious support of his migration policies as well as his support  for compatriots abroad. The party of Orban – Fides – not only won a majority but a constitutional majority – 133 of the 199 seats  in the National Assembly of Hungary.

There is no doubt  that Hungary has become Ukraine’s another serious opponent in the process of its European integration. And it is unlikely that either  country  will take a step back: there will be presidential elections in Ukraine soon, and in Hungary, the victory won by Orban, apparently, confirms the  approval of his independent  foreign  policy  by  the citizens.  So the conflict is likely to develop.

First published in our partner International Affairs

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Belt and Road Alternatives: The European Strategy

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The European Union (EU) has put forward a plan for enhancing connectivity within Asia, which has been dubbed as the Asia Connectivity Strategy.

The EU does not want to give an impression, that the Asia Connectivity Strategy (ACS) is a counter to the Belt and Road Initiative (BRI). Yet, senior officials of the EU, while commenting on the broad aims and objectives of the project, have categorically stated, that the primary goal of the Asia Connectivity Strategy, is enhancing connectivity (physical and digital) while also ensuring, that local communities benefit from such a project, and environmental and social norms are not flouted (this is a clear allusion to the shortcomings of the BRI). There are no clear details with regard to the budget, and other modalities of the project (EU member countries are likely to give a go ahead for this project, before the Asia-Europe Meeting in October 2018). EU has categorically stated, that it would like to ensure that the ACS is economically sustainable.

Other alternatives to BRI 

It is not just the EU, but even the US, along with Japan and Australia. which are trying to create an alternative vision to the BRI.

The US alternative to the BRI, is being funded by the recently created United States International Development Finance Corporation (USDFC) (an organization which will merge Overseas Private Investment Corporation and other Development Finance Programs) which came into being after the passing of the BUILD  (Better Utilization of Investments leading to Development) Act recently.

It would be pertinent to point out, that the US which has been accused of lacking a cohesive vision to counter China’s BRI has in recent months spoken, on more than one occasion, about greater the dire need for robust connectivity in the Indo-Pacific. In July 2018 US Secretary of State while speaking at the Indo-Pacific Business Forum committed an amount of $113 million for U.S. initiatives to support projects related to digital economy, energy, and infrastructure. The Secretary of State, while speaking about close links between US and Indo-Pacific, also spoke about the need for greater private sector involvement in projects in the Indo-Pacific. Pompeo off late, has also been reaching out pro-actively to a number of countries in South East Asia, and visited Malaysia, Indonesia in August 2018.

It would be pertinent to point out that OPIC  (now part of USFDC) has already signed with the overseas finance development arms of Japan and Australia, and is in talks with India to work jointly. Some of the areas being explored for joint investments are energy, infrastructure.

It is not just the US, even Japan has come with it’s own alternative, Partnership for Quality Infrastructure (PQI), to the BRI.

Potential Appeal of the Asia Connectivity Strategy

So the question then arises, why would countries seeking an alternative to China, not come on board the US’ connectivity initiative. The ‘Asia Connectivity Strategy’ may be especially acceptable to leaders, who do not want to be seen as blindly following US diktats, but who are also uncomfortable with Beijing’s economic policies, and want to avoid falling into what has been dubbed as Beijing’s ‘debt trap’ diplomacy. A perfect example being Malaysian Prime Minister, Mahathir Mohammad who scrapped projects worth 40 Billion USD, and also referred to the rise of a ‘new colonialism’ being promoted by China. The Malaysian PM has not shared a particularly cordial relationship with the US in the past. While addressing the United Nations General Assembly (unga), Mahathir made some interesting points, saying that Malaysians want a Malaysia, which seeks relations based on ‘mutual respect’ and a Malaysia, that is ‘neutral’ and ‘non aligned’

EU itself trying to strike a balance

EU Chief, Jean Claude Juncker, has been pitching for a more pro-active response to Trump’s insular policies, as well as China’s BRI. Given the fact, that EU has taken a divergent stand from US on the Iran issue, and has proposed a Special Purpose Vehicle (SPV) which will ensure that trade with Iran continues, even before the impending US sanctions to be imposed on Iran in November 2018. The SPV was announced, jointly with Russia and China, on the sidelines of the UNGA.

At the UNGA, French President, Emmanuel Macron disagreed with Trump’s views with regard to Iran, and supported the 2015 Vienna Accord. Said Macron: We know that Iran was on a nuclear military path but what stopped it? The 2015 Vienna accord.”

While it remains to be seen, if the SPV set up by EU works or not, but a number of countries which do not want to be part of the Chinese or American orbit would be attracted towards the EU, in spite of all the problems it is facing, due to it’s capacity to take an independent stand.

Asia Connectivity Strategy is not only about competition

It remains to be seen whether the Asia Connectivity Strategy can gain traction. In terms of connectivity, there may even be strong overlaps with the ‘Indo-Pacific vision’. France, which has strengthened strategic ties with Australia and India, is already seeking to play a pro-active role in the Indo-Pacific.

French President Emmanuel Macron had referred to the need for a strong Paris-Canberra-New Delhi axis, during his Australia visit, as a counter to China’s increasing assertiveness.

Interestingly, while there is a realization, that Asian Connectivity Strategy has a competitive element, and there are some clear differences between EU’s strategy and BRI, there are also some who believe, that there is space for collaboration between the Asia Connectivity Strategy and BRI. This point has been put forward by some policy makers and strategic commentators in EU, as well as sections of the Chinese media. Wang Wen Wen in an article for the Global Times, argues:

‘Asia needs Europe as much as it needs China. Since the EU and China are the two largest economic entities in Eurasia, it is vital that they steward the continent’s economic development agenda. Some programs in the BRI have carried out cooperation with the European side on technology and equipment procurement.’

In conclusion, the Asia Connectivity Strategy is an interesting idea. A lot will depend upon available resources and the response of potential stakeholders. But EU going ahead with such an initiative in spite of numerous problems within is truly laudable.

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