Protection of whistleblowers: Recommendation CM/Rec(2017)7 and explanatory memorandum

Recommendation

CM/Rec (2014) 7

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

Principles

Definitions

For the purposes of this recommendation and its principles:

a. 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;

b. 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;

c. report means reporting, either internally within an organisation or enterprise, or to an outside authority;

d. disclosure means making information public.

I. Material scope

1. 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.

2. 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,