EU has 'world upside down' attitude to whistleblowers

He was speaking of the case of two former auditors who exposed almost 600 dubious deals between large companies and tax authorities in Luxembourg, depriving fellow EU chancelleries of billions of euros in lost revenue.

The revelations, and the public anger they let loose, put pressure on member states and the European Commission, whose president Jean-Claude Juncker was Luxembourg’s prime minister at the time when many the Grand Duchy was granting the so-called tax rulings.

It led them to unblock EU initiatives that had stalled for years.

”No matter what you think of the measures taken,” said de Jong, whose leftist Gue/NGL group thought the measures were watered-down, ”it was the leaks that got the ball rolling on tax avoidance. It would never have gained political momentum without whistleblowers.”

Beyond the widely publicised LuxLeaks scandal, there have been many other cases of insiders blowing the whistle that never made the media limelight.

De Jong, who sits in the budgetary control committee and co-chairs a parliament group on transparency, corruption and organised crime, said his colleagues regularly receive citizens’ alerts of smaller scale wrongdoing in EU project management.

”We should be grateful to these brave people who care about public interest and want to put an end to corruption,” he said.

Instead, Luxembourg found whistleblowers Antoine Deltour and Raphael Halet to be thieves in a ruling delivered on Wednesday (29 June).

Competition commissioner Margrethe Vestager - who had deemed that some of the tax deals amounted to unfair state aid and sentenced companies pay back millions of euros - declined to testify at their trial.

Meanwhile, MEPs are grateful to receive tips that avert the waste of EU money, but lack the means to protect their sources if these were to be persecuted.

The parliament keeps urging the commission to come up with whistleblower protection laws, most recently through the final report of the special committee on tax rulings (the so called Tax 2) and through a plenary debate to be held on Wednesday (6 July).

But parliament itself is also inconsistent.

MEPs recently voted through a trade secrets bill that many said did not protect alarm-raisers enough.

”It speaks of the need to protect whistleblowers but the definition is so narrow that a Volkswagen employee who spoke of emissions fraud, for instance, would likely be punished,” De Jong said.

Protect those who protect EU funds

The Dutchman already received the budgetary control committee’s mandate to draft a report over the summer in which he will lay down principles for a future whistleblower protection law. Once adopted, the parliament will ask the commission to propose legislation on that basis.

As it is widely known how whistleblowers should be protected from different types of repercussion - Transparency International and OECD have both developed comprehensive guidelines - the MEP’s biggest challenge will be to find a way that would be acceptable to governments that should adopt them.

De Jong said an EU law could be based on article 325 of the Lisbon treaty , which states that the Union shall take measures to counter fraud affecting its financial interests.

”That would cover EU spending: structural, cohesion and research funds, in particular,” de Jong said.

But such a law could possibly also protect people like as Deltour and Halet.

”Tax avoidance is currently dealt with under competition law, an EU competency. Whether it also affects EU financial interests depends on if we can show a relationship between missed income in a member state and missed income for the EU,” de Jong said.

De Jong said he had opted for article 325 because of pragmatic reasons.

Alternatives for a broader protection law - such as a proposal by Green MEPs to base protection on workers’ rights instead - risked being blocked by EU member states, who have to approve such rules by unanimity.

The opposition of a single country - say, Luxembourg - would be enough to block their initiative.

De Jong’s proposal only requires the backing of a qualified majority in the Council, a vote based on relative population size.

The Greens, however, claim their proposal would only require a qualified majority as well.

"We based our proposal on article 153.b, which covers working conditions and is also subject to the ordinary legislative procedure," said Alberto Alemanno, professor of EU law at HEC Paris, who co-drafted the law.

EU staff rules

De Jong's initiative comes among a debate on the legitimacy of EU decision making, where much of the negotiations are held behind closed doors, making it harder for the public to effectively scrutinise EU legislation.

The Dutchman said he would recommend bringing EU staff rules in line with the international standard.

The staff rules’ article 22 currently conditions protection on ”a mouthful” of criteria. The international standard is ”reasonable belief of wrongdoing”.

But de Jong noted that ”one will probably never be able to avoid secret negotiations altogether”.

De Jong - a former Dutch UN diplomat - said he would like EU negotiations to be played out before the public eye to the widest extent possible, but the parties sometimes needed to sit down in private to hammer out compromises.

”People can accept that. What they can't understand anymore is that basic documents are secret”, he said.

He said he didn’t leak documents himself - ”when there’s a rule, there’s a rule” - but had noted that lobbyists, NGOs and journalists often got access to documents relating to, for example, negotiations on legislative proposals between the Council and the European Parliament (the so called trilogues), within hours of their submission.

He said it would be better to make the system more transparent.

”I don’t see any reason why they have to be so secretive about main documents of trilogues and of international negotiations,” he said, referring to the EU Commission, whose president once said he’s ”all for secret, dark deals”.

”People are used to getting information, even too much information. They want to know how laws and international trade agreements may affect society at large”, the MEP said.

”The old days of negotiating treaties behind closed doors just don’t match with current society.”

The article was updated on 10 July with professor Alberto Alemanno's position.