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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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Will the political face of France change?

Mohammad Ghaderi

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Political and social equations are wrapped up in France! Protests against President Emmanuel Macron continue. Most analysts from European affairs, however, believe that Macron will not have a chance to survive in the presidential race in the next presidential election.

On the other hand, many analysts believe the likelihood of a nationalist presence at the Elysees Palace is high! Le Pen is now trying to remove Macron from power through holding an early election; “It is necessary to implement proportional representation and dissolve the National Assembly in order to hold new proportional elections.”

Simultaneously, she attempts to attract the attention of French citizens to herself as France’s next president. “We believe that the way out of the crisis is essentially political. This decision excludes any use of violence that only adds chaos to adversity,” Le Pen said in a letter published on the party’s website.

Le Pen also emphasized that the political solution to the recent crisis depended on the French officials while uttering that French President Emmanuel Macron “is deprived of sympathy for the people, constrained by arrogance and indifference of the elites.”

As the French National Front can make its way to power, the EU and Euro area equilibrium will change: a matter that many European and French politicians have warned about.

In 2014, the President of the French National Rally political party, Marin Le Pen was able to shine exceptionally well in the European parliamentary elections and overcome other French political parties. In the 2017 general election, Le Pen was able to reach the final round of the presidential competitions for the first time since the establishment of the French National Rally. However, at that time, Le Pen couldn’t act against the broad opposition of the Socialist and Conservative parties. But the equation seems to have changed now!

The French president is not in good shape now! Polls conducted in France suggested a decline in the popularity of Emmanuel Macron as the country’s president. This is while only 21 months have passed since Macron’s presence at Elysee Palace. Under such circumstances, Le Pen and her companions will naturally try to change the French citizen’s mind to the benefit of the French National Rally. This is a very good time indeed, as many of the French citizens no longer trust Macron and his promises for making economic, social reforms in France.

The main question is whether the French National Front will succeed in achieving its goals? It is not clear, however, that Le Pen’s calculations would all come true. The French National Rally President opened a special account on Macron’s former supporters to change their minds, and as a result, their votes to her benefit! This is while some of these votes may turn into silent votes or white votes.

Also, it’s quite possible that France political atmosphere in 2017, would once again repeat in 2022, or during the country’s possible early elections. In this case, to right-wing extremists of French National Rally are going to lose the elections again. Therefore, Le Pen is really cautious about her positions right now, though she believes that Macron’s incapability provided the ground for her political and social success in Paris.

First published in our partner MNA

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Europe has changed its mask

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Face” of peaceful and friendly Europe has changed. Europe even does not try any more to wear a mask of past tolerance. Tensions are constantly increasing. Unrest like wildfire is sweeping across Europe. Though riots caused by different events and decisions, political convulsions make Europeans feel uncomfortable. People are tired of being unheard by the authorities.

Misunderstanding between ordinary people and authorities is more clearly visible, especially in the so-called “old Europe”. Once prosperous countries, France and Italy, actively resist the new world order. Social instability, deterioration of living standards on the background of militarization has led to unprecedented unrest. All attempts to reduce tensions have not brought about results.

Democracy has plaid a dirty trick with all of us. Freedom allows people to go on the streets and introduce their position. On the other hand, delegated powers give the authorities the possibility to “calm” the riots, to suspend the activities, to ban meetings, even using police.

French political movement for economic justice, the so-called “yellow vests”, went beyond the country and caused diplomatic crisis between France and Italy.

German workers also expressed solidarity with “yellow vest” protests in France. Workers in Germany share the same grievances and recognize they also confront policies that favour the rich.

Another irritating thing is militarization of the region, NATO expansion. Many Europeans link the fact of increasing national defence expenditures with deterioration of life. That is why anti-NATO and anti-war campaigns on the Internet gain momentum. Among them are: no-to-nato.network, notonato.org, no2nato2019.org, popularresistance.org/no-to-nato-spring-actions-in-washington-dc. The more so, “Stop Air Base Ramstein” campaign in Germany started October 5th, 2008, gains more popularity and organizes protests in Germany and abroad. It has its representatives in the US, Austria, Australia, Poland, Ireland, France, Japan and the UK. The international network No to War – No to NATO calls for broad actions against NATO in Washington DC and worldwide.

The next occasion for such organizations to become more active is the signing an agreement with Macedonia on February, 6 allowing the country to become the military alliance’s 30th member. This particular step could become the catalyzer for more violent protests and political disobedience. It brings chaos to Europe, raises tensions and leads to the loss of trust in Peace and Democracy.

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Unrest in Bosnia

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For Bosnia and Herzegovina many analysts will say that is artificial creation. That is why there is a saying for Bosnia: ”Where logic ends, Bosnia begins”. Anyway, the latest Bosniak initiative, has surprised many, because it strikes at the very basis of existence of Bosnia and Herzegovina. Recently, the Party for Democratic Action (SDA), the main Bosniak party in the country, announced that will initiate a legal procedure before the Constitututional Court to challenge the name of Bosnia`s Serb-dominated Republika Srpska.

”The previous practice of the Republika Srpska institutions showed that the entyty`s name was intensively and efficiently used to discriminate against the other two constituent peoples – Bosniaks and Croats, “ the SDA said. “Linking the name to only one people living in the multi-ethnic Bosnia and Herzegovina is contrary to the Constitution and the European Convention on Human Rights.” The strongest Bosniak national party, further said that the Constitutional Court made an earlier decision on the constituency of the people which stipulated that the entities must ensure full equality of all constituent peoples in their legal systems.

Reacting to calls for the Constitutional Court to review the legality of the name of Bosnia’s Serb-dominated Republika Srpska, the leader of ruling Republika Srpska party Alliance of Independent Social Democrats and current Chairman of Bosnia’s Tripartite Presidency, Milorad Dodik, strongly condemned the Party for Democratic Action initiative at a press conference the same day and called upon the SDS (second strongest Serb party) to support a decision on the “independence of the Republika Srpska” if the initiative is submitted to the Constitutional Court.

“Our authentic and original constitutional rights is for us to decide on our status. We will do that,” he said, dismissing earlier statements by the High Representative Valentin Inzko, named by the international community to oversee the civilian implementation of the Dayton Agreement, who said that Republika Srpska can not secede. ”He was put here to conduct repercussions against Republika Srpska. But this is a moment where there will be no calculations,” Dodik said. ”If you wanted to throw us, Republika Srpska, out of Bosnia and Herzegovina, you are doing best job possible. Finish it. I have nothing against it,” Dodik said, referring to the Party for Democratic Action.

This attack on Republika Srpska showed that Serbian politicians are united in its defense. The move drew condemnation from both the ruling Republika Srpska Alliance of Independent Social Democrats (SNSD), and Bosnian Serb opposition parties in the entity, such as the Serb Democratic Party (SDS) and the Party of Democratic Progress (PDP).

In one of the first reactions to the Bosniak Party for Democratic Action announcement, the Republika Srpska National Assembly Speaker Nedeljko Cubrilovic said this was a nothing but a provocation and that it represents an anti-Constitutional act.

”The SDA’s claims are disgusting and laughable at the same time because they are the ones who refuse to implement the Constitutional Court’s decision issued 12 years ago, stipulating that Serbs must be equally represented in the Federation of Bosnia and Herzegovina,” Cubrilovic said. ”Initiating a Constitutional Court discussion on the name of the Republika Srpska would mark the end of the project called Bosnia and Herzegovina,” Cubrilovic noted.

The Office of the High Representative (OHR), top international institution overseesing the peace implementation in the country stated that the initiative to dispute the name of Bosnia’s Republika Srpska entity before the Constitutional Court amid the post-election government formation is “irresponsible and counterproductive.” Bosnia and Herzegovina consists of two entities, the OHR said, and the Peace Implementation Council continuosly expresses its commitment to basic structure of Bosnia and Herzegovina as an integral, sovereign state that consists of the two entities.

The international community’s High Representative was installed to oversee the civilian part of the implementation of the Dayton Peace Agreement, the peace threaty that ended the 1992-1995 Bosnian war. Its Peace Implementation Council (PIC) Steering Board, which is composed of foreign ambassadors in Bosnia, meets twice a year to assess the progress in the process.

Background

The statement of Bakir Izetbegovic, leader of the strongest Bosniak party SDA, who addressed the public saying that he is ready to consider abandoning the initiative to change the name of Republika Srpska, if in the next six months “the SNSD change its behavior”, and accept the further path of Bosnia and Herzegovina towards NATO, clearly shows who is standing behind this initiative. Even “Croatian” member of Bosnia and Herzegovina Presidency Željko Komšić – several days before Bakir Izetbegovic- conditioned the appointment of a mandate for the Council of Ministers (which currently belongs to the Serbs) by membership in the NATO. It should be added that this initiative of the Bosniaks comes shortly after the visit of Russian President Vladimir Putin to Serbia, where he met, among other things, with the leadership of Republika Srpska.

An interesting analysis of the events in Bosnia was published on January 13 in National Interest, American bimonthly international affairs magazine, by Sean Maguire and Ryan Scherba, with title: “The Bosnia Boondoggle: This is Why Sarajevo Can’t Join NATO”. In the analysis, among other things, is written: “If the United States is serious about backing NATO membership for Bosnia and Herzegovina, then it has to get serious about the failures of the Dayton Peace Accords and drop its support for them as Bosnia’s governance system. They may have ended Bosnia’s civil war in 1995, but they have become synonymous with stagnation, frustration, despair, poor governance and weak institutions. This not only hinders the joint U.S.-Bosnian aspirations to join NATO, but has stagnated Bosnia overall, enshrining ethnic divisions (and tensions) legally between Bosniaks (Bosnian Muslims), Croats, and Serbs that have left Bosnia divided and ripe for geopolitical goals of Russia. The recent elections in October that delivered a hardline Serb-nationalist who is stridently anti-West and NATO to the Bosnian presidency are evidence of this, while serving as a wake-up call to Washington that it is time to re-engage in Bosnia.” In addition to the National Interest, from Turkey also arrived messages regarding Bosnia and Herzegovina future. During a meeting with Croatian President Kolinda Grabar Kitarovic, the President of Turkey Recep Tayyip Erdogan urged for the revision of the Dayton Agreement. Turkish President and Croatian President apparently agreed that this document, prepared in haste for only three weeks to stop the war, did not create the conditions for finding a stable solution for the future of Bosnia and Herzegovina.

The Steering Board of the Peace Implementation Council (PIC), the international community representatives who oversee the implementation of the agreement that ended Bosnia’s war, said they recognize the concerns regarding discrimination of constituent peoples and citizens across the country as legitimate, but that the name “Republika Srpska” is enshrined in the Constitution. The PIC recalled that the Constitution of Bosnia and Herzegovina recognizes that the country consists of two entites, the Bosniak-Croat shared Federation of Bosnia and Herzegovina and Republika Srpska.

Challenging the name of the Republika Srpska entity before the Constitutional Court would be counterproductive and irresponsible, the Peace Implementation Council Steering Board stated while it also condemned recent rhetoric and actions that question the territorial integrity of Bosnia.

Russia refused to join the statement that foreign diplomats in Bosnia issued in response to the recent initiative to challenge the name of Republia Srpska before Bosnia’s Constitutional Court, the Russian Ambasador confirmed to journalists.

”Russia did not give consent for the PIC’s (Peace Implementation Council) joint statement because it is too general. It is everyone’s yet no one’s fault,” Petr Ivantsov told media after the meeting of ambassadors. The conclusions his colleagues passed has a broad meaning that speaks of mistakes of all political actors in Bosnia, said Russia’s diplomat, adding that the statement does not focus on current problems. According to Mr. Ivantsov, the SDA’s “threat” to dispute the Republika Srpska’s name at the Constitutional Court is “a serious mistake” and is not in line with the 1995 Dayton Peace Agreement.

Conclusion

The Bosniaks would never undertake such a radical move if they did not have the support in the first place of the West, and also Turkey. After undemocratic accession of Montenegro into NATO, and soon Macedonia, NATO directs its attention to Bosnia and Herzegovina. The main opponent of Bosnia and Herzegovina’s entry into NATO is Republika Srpska, whose Assembly passed a resolution on military neutrality.

The West makes it clear that it will not give up until all Balkan states become NATO members. The most important land and riparian transportation corridors between Western Europe and the Eastern Mediterranean, and between the Baltic and Aegean Seas, run through Serbia. Because of that, the main goal of the West is Serbia’s entry into NATO, which would also leave Russia without a strategic ally in the Balkans. The main obstacle to this is the “second Serbian state in the Balkans”, that is Republika Srpska. This is precisely why the Bosniaks are encouraged to strike on the basis of Dayton.

The structure of Constitutional Court of Bosnia and Herzegovina plays a major role in the political life of Bosnia and Herzegovina, and it consists of three foreign judges, two Bosniaks, two Serbs and two Croats, which means in practice and it has been established so far – that three foreign and two Bosniak judges have majority, and they use it. So arbitrarily impose their decisions on all citizens of Bosnia and Herzegovina.

If the initiative to abolish the name of Republika Srpska go to Constitutional Court of Bosnia and Herzegovina, the Serbs must show their determination, which is now announced by the most powerful Serb politician Milorad Dodik. A decision must be made to declare the independence of the Republika Srpska. Such a decision carries a risk of conflict in Bosnia and Herzegovina, however, Republika Srpska has no other choice.

First published in our partner International Affairs

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