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

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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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The new Silk Road: The agreement between the EU and China opens up new geopolitics scenarios

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The year that has just started does not seem destined to be more peaceful than the one that has just ended.

While the world continues to be afflicted by the Covid-19 pandemic, the United States, which can boast to be “the oldest democracy” of the modern era, is not only helplessly suffering from the virus attack but is going through an unprecedented internal crisis that seriously calls into question its coveted role as world superpower.

On January 6 last, the Capitol Hill in Washington was assaulted by a crowd of “Trump supporters” who, inflamed by the subversive words of a President who does not seem to resign himself to electoral defeat, violently stormed the House in a bid to stop Congress from counting electoral votes to certify President-elect Joe Biden’s victory in last November election. The attack brought America back to the dark times of Abraham Lincoln’s first election when, in 1860, eleven Southern States refused to recognize the electoral result and started an attempt to disrupt the Republic that resulted in a bloody civil war.

Donald Trump’s reckless adventurism which, in the coming days, could lead to his ousting, is not only causing a deep crisis in the internal set-up of the American society and its institutions, but also risks seriously undermining America’s credibility globally and leading to a major downsizing of its geopolitical ambitions.

Throughout his four years in office, Donald Trump has attempted to “contain” China economically and politically, by imposing tariffs and duties on Chinese goods imported into the United States and supporting the “democracy movement” in Hong Kong that has been causing unrest in the former British colony for almost two years. By inciting his supporters to challenge and oppose the Presidential handover, he has handed a propaganda weapon on a silver platter to a country like China that, after being the first to be hit by the pandemic, was also the first to emerge successfully from it.

While recalling that when protesters stormed and ravaged Hong Kong’s Capitol Hill in 2019, both Secretary of State Mike Pompeo and the Speaker of the U.S. House of Representatives, Democrat Nancy Pelosi, applauded the protesters’ violent behaviour, it was easy for the Chinese Foreign Ministry’s spokeswoman, Hua Chunying, to accuse the Americans of “double standards” in the moral and political assessment of their own and others’ behaviours.

In a press conference convened to comment on the Washington attack on Capitol Hill, Hua Chunyingsaid: “I believe that this assault is a déjà vu … I see that in the United States there are different reactions to what happens at home compared to what happened in Hong Kong in 2019 …”.

Over and above propaganda skirmishes, in the year in which the centenary of the CPC’s is celebrated, China keeps on scoring points in its favour in the geopolitical and economic competition with the United States.

On December 30, 2020, the news of the historic investment agreement between China and the European Union was reported.

After seven years of negotiations, during a conference call between Chinese President Xi Jinping and the President of the European Commission, Ursula Von Der Leyen, with French President Emmanuel Macron, German Chancellor Angela Merkel and the President of the European Council, Charles Michel, the “Comprehensive Agreement on Investments” (CAI) was adopted.

It is a historic agreement that opens a new “Silk Road” between Europe and the huge Chinese market.

The CAI’s basic principles aim at a substantial rebalancing of trade between Europe and China, as the latter has so far shown little openness towards the former.

With this agreement, China is opening up to Europe in many significant sectors, with particular regard to manufacturing and services.

In these sectors China commits itself to removing rules that have so far strongly discriminated against European companies, by ensuring legal certainty for those who intend to produce in China, as well as aligning European and Chinese companies at regulatory level, and encouraging the establishment of joint ventures and the signing of trade and production agreements.

In the manufacturing field, the “automotive” sector will be boosted, with specific reference to the production of electric cars, but also to the production of chemical products, materials for telecommunications and new generation health devices.

As far as the servicesector is concerned, China will foster European investment in cloud services, financial services, private healthcare and the services related to air and maritime transport.

In all the sectors covered by CAI, European investors and producers will no longer suffer any discrimination with respect to Chinese competitors, including state-owned companies, nor will they be denied access to productive sectors so far forbidden to foreigners.

The agreement also provides for guarantees that will make easier for European companies to deal with the paperwork needed to fulfil all administrative procedures and obtain legal authorizations, thus removing the bureaucratic obstacles that have traditionally made the operation of European companies in China difficult.

It is the first time in its history that China opens up in this way to foreign companies and investment.

In view of attracting them, China is committed to lining up in terms of labour costs and environmental protection, thus progressively aligning its standards with European ones, in terms of fight against pollution and trade union rights.

With a view to making this commitment concrete and visible, China adheres to both the Paris Climate Agreements and the European Convention on Labour Organization.

While commenting on the signing of the agreement, President Von Der Leyen stressed that “this is a fundamental step in our relations with China. The agreement will provide European investors with unprecedented access to the Chinese market, thus enabling our business to grow and create jobs. It also commits China to adhering to the principles of transparency and non-discrimination and fundamentally rebalances our economic relations with China.

The China-Europe agreement is another piece in the mosaic of commercial and political relations on which China wants to build the geopolitical role of a nation which, according to growth estimates, is destined to reach the first place in the world ranking in terms of GDP by the end of the decade.

In fact, CAI follows by just a month the signing of the “Regional Comprehensive Economic Partnership” (RCEP), an agreement of strategic importance signed by China with the ten ASEAN countries and with Japan, South Korea, Australia and New Zealand.

The RCEP has been described as “the world’s largest trade and investment bloc” and essentially creates an area of economic cooperation and free trade involving 2.2 billion people producing 28%of world trade and over 30% of global GDP.

The RCEP countries account for 50% of the world’s manufacturing output, 50% of automobile production and 70% of electronics. The RCEP eliminates 90% of tariffs on trade in the signatories’ region, thus creating a huge Asian free trade area that sees, on the one hand, India’s marginalization and, on the other, the growth of China’s role throughout East Asia.

The CAI agreements with Europe and the RCEP agreements with Asian partners undoubtedly mark a historic turning point in relations between China and the rest of the world. The United States remains excluded from these relations, as it is currently blocked in a process of transition that limits not only its democratic activity, but also its operativity and international credibility.

After the hallmark of U.S. foreign policy in Trump’s era was reduced to imposing tariffs on trade with China, the gradual loss of credibility of the U.S. administration has stultified Secretary of State Mike Pompeo’s attempts to gather a broad international anti-Chinese coalition led by the United States.

The RCEP is there to demonstrate how fragile the U.S. attempts to counter China economically and politically have been, as two once strategic partners of the United States like South Korea and Australia have literally turned a deaf ear to American appeals and have struck a historic and strategic deal with China.

The CAI puts Europe in communication and in ever closer connection with what for centuries was “The Middle Kingdom”, i.e. a China that has chosen to lower its ideological barriers in order to open up new pathways of economic progress and hopefully democratic development.

French and German representatives were present at the CAI signing.

While Europe was opening the “new Silk Road”, the country that gave birth to De Gasperi, one of the founding fathers of the European Union, and to Marco Polo, protagonist of the opening of the first “Silk Road”, was conspicuously absent from the negotiation table.

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Has Germany Lost its NATO Compass?

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Authors: Dr. Zlatko Hadžidedić, Adnan Idrizbegović

By the end of 2020, a strange information appeared in Bosnian and German media: having made unilateral concessions to the long campaign of Russia to put an end to the Office of the High Representative in Bosnia-Herzegovina, Germany now wants to overthrow the current High Representative, Valentin Inzko, and bring the OHR under control of its own man, Christian Schmidt. Does this bilateral initiative have any legal basis? And, is this petty manoeuvre in the Balkans going to open Pandora’s box on the global level, again?

The Office of the High Representative was established in 1995 by the Dayton Peace Accords, to exercise the remaining10% of the Bosnian state sovereignty, which has in 90% been ceded to the two ethnically defined sub-state units, the so-called entities. As such, High Representative has the authority to overpower blockades and vetoes introduced by the entities. High Representative is an inseparable part of Bosnia’s Dayton Constitution, no less than the entities and their veto power. In that sense, the Russian campaign to eliminate the Office of the High Representative while preserving the entities and their veto power is legally absurd: one cannot take one part of a contract out, while insisting on implementation of the rest; for, taking one part out nullifies a contract altogether. However, implementation of the Russian requests under the given conditions of the Dayton Constitution would destroy the last remnants of the Bosnian sovereignty and integrity, granting full sovereignty to the entities and resulting in Bosnia’s dissolution. Russia, acting for years as a self-proclaimed supporter of Serbia and its interests to dissolve Bosnia, does not introduce any novelty in its foreign policy in the Balkans. Yet, what is going on with Germany, a NATO member, an EU leader, and a self-promoted supporter of Bosnia’s sovereignty and integrity?

It should be noted that a High Representative can be replaced only by decision of the UN Security Council, under recommendation of the Peace Implementation Council, a body for implementation of the Dayton Peace Accords consisting of diplomatic representatives of the US, Russia, France, Germany, Italy, Great Britain, Canada, Japan, and the Organisation of the Islamic Conference represented by Turkey. The UN Security Council decisions can be reached only by consensus of the permanent members with veto power. Decisions of the Peace Implementation Council can also be reached only by consensus of its original members (US, UK, France, Russia, Germany, Italy). It is, therefore, legally absurd, again, to replace a High Representative by a bilateral agreement between Russia and Germany, without any such consensus. It would mean a violation, if not elimination, of all legal procedures, not only those referring to the institution of High Representative, but also those related to the Security Council and the UN as a whole. Indeed, what happened to the German foreign policy, hitherto absolutely devoted to international legal procedures and international law?

An explanation for the German change of course, presented in both Bosnian and German media, was German increasing dependence on Russian gas supply, bearing in mind that Germany has given up all alternatives to the Nord Stream pipeline, which delivers Russian gas to Germany. Once upon a time, the former German Foreign Minister, Joschka Fischer, strongly advocated an alternative pipeline, called Nabucco, which would bring Iranian gas to Germany and the rest of Europe. On the other side, Chancellor Gerhard Schroeder, who eventually became Chairman of the Board of both Nord Stream AG and Rosneft, a Russian oil corporation, advocated the Nord Stream pipeline as the preferential one. Eventually, Schroeder had enough luck to have a comprehensive anti-Iranian coalition (ranging from Russia to the US) on his side, so that the Nabucco project was eventually abandoned and the Nord Stream remained the only option. At the time, Schroeder was criticised by German media for linking his private interests with strategic interests of Russia: for, the company Nord Stream AG, of which he was the Chairman, was in 51% owned by the Russian corporation Gazprom. In this way, Schroeder made Germany dependent not only on Russian gas supply, but also on Russian geostrategic interests, articulated by the Kremlin and Gazprom. Schroeder’s personal friendship with Russian President, Vladimir Putin, did not pass unnoticed, either. In this way, Germany not only gave up its own energetic sovereignty, but also abandoned the official EU energetic security strategy, which stipulates diversification of energy supply sources. Schroeder thus intentionally buried the traditional German Ostpolitik; but what was the reason for the next German government, led by Angela Merkel and controlled by the CDU/CSU coalition, to adopt the same course? What has happened to the German geostrategic orientation? Has Germany lost its NATO compass?  

After the disastrous consequences of the 1973 oil crisis, German government invested heavily in construction of gigantic oil and gas storages, with a strategic goal to control negative effects of permanent oil price fluctuations on the German economy and population. Yet, these storages have eventually ended up in ownership of the Russian oil and gas giant, Gazprom. Such a development has given Gazprom effective control of the German energy market. Consequently, it has given Gazprom and Russia strategic influence on the entire economy of the European Union. One can only wonder, why has Germany decided to deliver not only its own destiny, but also that of Europe, to Russia? And then, no wonder that Great Britain has opted for Brexit to simply run away – this time, not from the Brussels bureaucracy, but from the Kremlin’s oilgarchy and Russian energocracy.

This U-turn in geopolitical orientation, unilaterally performed by Germany but tacitly agreed upon by the rest of the EU countries, certainly generates shockwaves throughout the Euro-Atlantic structures, inevitably separating Europe from the Atlanticist part of its identity. In this context, the most loyal American allies among the NATO members, Turkey and Germany, have turned their backs on the US and started looking at Russia as a new strategic partner. Both of them utilised the crisis of leadership in the US, caused by President Trump, to reclaim their sovereignty and decide which side to turn to. Since Trump has managed to disable the entire global security architecture as constructed after the World War II, attacking all multilateral organisations and treaties and thus opening the gates of the West for the Russians and Chinese to enter, German and Turkish re-orientation can be justified as rational. Yet, a bitter taste of betrayal – by Germany, by Turkey, but no less by Trump – lingers on. Does it mean that America, under Donald Trump, has eventually lost the Cold War, as Russia had once lost it under Boris Yeltsin? Will American influence be reduced to the English-speaking world? Is Germany, together with Russia, establishing a new, Eurasian Union? Is China going to be a part of it, given its hasty trade deal with the EU? Has the worst Anglo-American nightmare, that of a united Eurasian “World Island”, finally come true? Or the current German-Russian pact is going to end up like the previous one, smashed under the weight of the Anglo-American axis?

Global Pandora’s box has obviously been opened and the world geopolitical order, as we knew it, has fallen apart. A new order, or perhaps a disorder, is approaching. Such a development can be detected at all levels, looking at the top or at the bottom, and is signalled even by the clumsy German attempt to court the Russians by abandoning fundamental legal principles and its own foreign policy postulates in a seemingly insignificant place like Bosnia. Strangely, both Germany and Russia have accepted to play the roles assigned to them in the 1990s by the then British propaganda, which labelled them as patrons of Croatia and Serbia in their efforts to carve up Bosnia along the lines of its multiple religious identities. Whereas Russia openly adopted its role as the protector of the Orthodox Serbs many years ago, Germany’s adoption of the parallel role, that of the protector of the Catholic Croats, is a relative novelty. While in the 1990s both Germany and Russia were reluctant to play the roles casted by others, now they have become eager to demonstrate their rising power through such a game. The attempted appointment of Christian Schmidt leaves no place for doubt that Germany has fallen into this trap with a surplus of enthusiasm. For, the former German Minister of Agriculture, and a member of the Bavarian Christian Social Union (CSU),was publicly decorated by Croatia with a medal of “Order of Ante Starčević” for his promotion of Croatian national interests. He proudly shares this medal with prominent Croatian ultra-nationalists and war criminals, such as Gojko Šušak, Mate Boban, Dario Kordić, Jadranko Prlić, and many others, who were inspired by the Croatian Ustash a regime from the World War II, as much as the Ustashas themselves had been inspired by the then German Nazi regime. In this context, it should be noted that Schmidt’s inclinations are not derived from some religious, pan-Catholic sentiments, but rather from his ideological, ultra-nationalist affinities, for which he was rewarded by his ideological brethren. If appointed a High Representative, Schmidt will probably follow the same path, so he will promote interests of Croatian ultra-nationalists, whose goal is to cede a part of the Bosnian territory and make it a part of Croatia, rather than interests of Catholics in Bosnia. Does it imply that he is going to work together with ultra-nationalists of all sorts – and there are enough of them in Bosnia – on the country’s final dissolution? Is that outcome in Germany’s best interest, and what kind of image does Germany project if it sends Schmidts as its representatives? Finally, what message does Germany leave to the world, if it takes the advantage of the uncertain power transition in America to prepare dissolution of a US-sponsored international treaty, the Dayton Peace Accords, thereby introducing, with a help of Russia, a new era of lawlessness?

There are so many questions to which German authorities should offer valid answers, before they pull the trigger to assassinate both Dayton and Bosnia, and destroy some of the last remnants of the international order. Do they think that they owe these answers to the rest of us?

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How does the UK-Spain Deal Saves Gibraltar from a Hard Brexit

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The new year’s eve brought Spain and Britain to reach a last minute deal making Gibraltar part of the Schengen zone even though it is a British overseas territory. Located at the southern tip of the Iberian Peninsula and bordered by Spain on the north, Madrid and London were engaged for months in diplomatic negotiations over the post-Brexit future of Gibraltar. Now this deal ensures that Gibraltar is not separated from Europe from a hard border.

Gibraltar

The name Gibraltar is derived from Arabic word Jabal Tariq translated as Mount of Tariq. In 1713, it came under the power of Britain after the kingdom of Spain ceded Gibraltar in the Treaty of Utrecht and has remained with Britain since then. Located at a strategic location, Gibraltar was used as a key base during the Napoleonic wars and its importance grew with the opening of Suez canal. Thereafter, Gibraltar was fortified and earned the title, ‘the Rock.’ During the second world war, it became one of the bases for the allies.

After the war, in the 1950s, Spain claimed sovereignty on Gibraltar following which the 1967 Gibraltar sovereignty referendum voted to remain with Britain. Even during the referendum of 2002, people of Gibraltar voted against shared sovereignty by Britain and Spain. Gibraltar has thus remained as a Britain overseas territory and the citizens have British citizenship.The governance of Gibraltar is managed by its own government through a parliament. Britain governs on matters of defence and foreign policy.

Britain (including Gibraltar) became part of the European Union in 1973. It was the only  British Overseas Territory included in the European Union. In the 2016 UK European Union membership, 96% of the Gibraltarians voted to remain, however since a total of  51.9% of the votes in the UK was cast in favour of leaving the EU, Brexit followed. Gibraltarians mainly voted ‘Remain’ because the territory’s economy depends on an open border with Spain, which sends over 15,000 workers and 200 trucks there daily. UK’s withdrawal from the European Union also implies Gibraltar’s exit from European Union.

The UK-Spain Deal

Brexit left Gibraltar with a hard border situation with the EU. With the UK-Spain Deal, Gibraltar is being placed in the Schengen area, with Spain acting as a guarantor and it will follow other EU rules. This will restore free movement of people across Gibraltar and EU, meaning citizens of EU and Gibraltar can move across without passport checks. The Gibraltar deal will mean the EU sending Frontex border guards to facilitate free movement to and from Gibraltar. Their role is planned to last four years.

The agreement between Madrid and London has been signed off on an agreement in principle. So it remains to see what the nitigrities of the deal would mean for all parties. British Foreign Secretary Dominic Raab has said that, “we reached agreement on a political framework to form the basis of a separate treaty between the UK and the EU regarding Gibraltar. We will now send this to the European Commission, in order to initiate negotiations on the formal treaty. In the meantime, all sides are committed to mitigating the effects of the end of the Transition Period on Gibraltar, and in particular ensure border fluidity, which is clearly in the best interests of the people living on both sides.”

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