Important legal notice
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Reporting serious wrongdoing: Whistleblowing

Every organisation faces the risk of something going wrong Top

Every organisation faces the risk of something going seriously wrong or of unknowingly harbouring a corrupt individual. Procedures for raising concerns about fraud, corruption or other serious wrongdoing are relevant to all responsible organisations and to the people who work there. Where such a risk arises, usually the first people to realise or suspect the problem will be those who work in or with the organisation.

People remain silent: Yet unless the culture is one where employees believe that it is safe and accepted to raise such a concern, the chances are that people will remain silent. Thus, the organisation cannot investigate the concern, take any appropriate action or demonstrate its ability and resolve to manage itself.

Accordingly, the new Staff Regulations now include two articles (22a and 22b), which place a duty on all staff to report such concerns either within the Commission or directly to OLAF, the European Anti-Fraud Office.

Whistleblowers protected: Staff members who fulfil this obligation enjoy protection from adverse consequences of “blowing the whistle” (see below: Protection from adverse consequences).

Whilst Article 22a outlines the duty for staff to report serious wrongdoings within the Commission or to OLAF (“internal whistleblowing”), Article 22b protects officials disclosing information on such serious wrongdoings to EU bodies other their own institution (“external whistleblowing”) – provided that certain requirements are fulfilled (see below).

Staff members have to inform about wrongdoing Top

As part of reform, the existing legal framework has been supplemented and incorporated into the Staff Regulations. Accordingly, staff members are, obliged to report facts pointing to a possible illegal activity, including fraud or corruption, or to a serious failure to comply with the professional obligations of officials. The duty only concerns facts discovered by the official in the course of or in connection with her/his duties. An official who becomes aware of any serious wrongdoing shall transmit it in writing and without delay to her/his Head of Unit, their Director General, the Secretary General of the Commission or the European Anti Fraud Office directly.

The authorities informed are required to take appropriate action. As these are wrongdoings for which OLAF is competent, the recipient of this information (i.e. the immediate superior, the DG or the SG) shall in turn transmit it without delay to OLAF. Therefore, while the official has a choice of reporting channels, the information should ultimately reach OLAF in a short period of time (see below: obligations of OLAF or the institution).

External whistleblowing: If neither the Commission nor OLAF has taken appropriate action within a reasonable period, the official who reported the wrongdoing has the right to bring her/his concerns to the attention of the Presidents of either the Council, the European Parliament, the Court of Auditors, or the Ombudsman. However, the duties of discretion and of loyalty to the Institution to which officials are bound imply that this is an option of last resort, justifiable only if the official concerned honestly and reasonably believes that the information disclosed, and any allegation contained in it, are substantially true and if s/he has allowed the Commission or OLAF a reasonable period of time to take the appropriate action (see below: obligations of OLAF or the institution). The duties of discretion and of loyalty also imply that reporting serious wrongdoings beyond these institutions (e.g. to the press) is not permitted.

These rules are intended to introduce a reliable mechanism, which is compatible with the principles of responsibility and accountability within an organisation.

The facts must speak for themselves Top

The obligation of staff members is to report “facts which gives rise to a presumption of the existence of possible illegal activity including fraud or corruption …. or of a serious failure to comply with the obligations of officials …” in writing and without delay to either within her/his DG or, if the official considers it useful, to OLAF or to the Secretary General. This gives staff members the choice as to whether to report directly to OLAF or internally within their Service. The text is also clear that neither an official nor a manager is expected to prove that this presumption is true. Equally, however, it is implicit in the text that the official or manager reasonably believes this to be the case at the time of reporting.

It should be noted that staff members will not be expected to prove that the wrongdoing is occurring; nor will they lose protection simply because their concern turned out not to be correct, provided that they could not have been expected to realise that. However, even if there is substance to the information itself, the protection can be lost if the official makes unwarranted or damaging allegations that s/he cannot show to be honest or reasonable. The effect of this is that wherever an official is contemplating an external disclosure, s/he will be well-advised to let the facts speak for themselves.

This duty only covers serious wrongdoing Top

The duty is restricted to evidence suggesting possible illegal activities or a serious failure to comply with professional obligations. It does not therefore cover all cases of non-respect of obligations under the Staff Regulations but only serious professional wrongdoings.

Furthermore, the Articles 22a and 22b restrict the duty to report evidence on possible wrongdoings to information which has been received by the staff member in connection with the performance of her/his duties.

Duty of loyalty and discretion Top

Article 17 of the Staff Regulations provides that an official “… shall not in any manner whatsoever disclose to any unauthorised person any document or information not already made public”.

It follows that Article 17 does not conflict with the obligation to report concerns either internally or directly to OLAF, as the new rules define the persons who are authorised to receive information on wrongdoings. Reporting concerns in this way does not, therefore, conflict with Article 17 and staff are assured that no action will be taken against them.

Duty to act fairly and not out of personal interest Top

It should be clear that the new rules on raising concerns about serious wrongdoings are not substitutes for grievance procedures where staff have some personal interest in - or seek to dictate - the outcome. They are also inappropriate for dealing with disagreements over policy. Their purpose is to allow the employee to raise a concern about wrongdoings so that those in charge may look into it. Therefore, should it be proved that an official had reported information to their hierarchy or OLAF maliciously, that official would be exposed to disciplinary proceedings and to the possibility of civil action before the national courts.

Protection from adverse consequences Top

Staff members meeting the conditions set out above will be protected from adverse consequences. Naturally, this protection is dependent on the good faith of the official reporting wrongdoing (see above).
Officials who meet the above described requirements for whistleblowing will be protected from adverse consequences within the Commission.

A Commission communication (SEC / 2004 / 0151) of 6th February 2004 from Vice-President Kinnock, provides for specific measures to ensure a maximum of protection for staff making proper use of the whistleblowing procedures (see below)

Obligations of OLAF or the Institution Top

On receipt of information from whistleblowers, OLAF or the institution must:

Staff involved in financial management: Financial Irregularities Panel (FIP) Top

The obligation to report serious irregularities applies to all officials and other agents of the institutions. The scope of the duty to report does not only cover irregular financial transactions but also extends to other forms of serious wrongdoings.

There is an additional obligation to notify the FIP of apparently irregular transactions. This only applies to members of staff acting under the Financial Regulation, i.e. those involved in financial management and the scrutiny of transactions.

The relation between the reporting duties under the whistleblowing rules and under the Financial Regulation is set out in Article 60(6) of the Financial Regulation:

In the event of any illegal activity, fraud or corruption which may harm the interests of the Community, he/she shall inform the authorities and bodies designated by the applicable legislation.”

The reporting duty under the whistleblowing rules for staff therefore takes precedence over the reporting duty to the Financial Irregularities Panel. This means that a financial officer, when faced with a serious irregularity, should follow the whistleblowing procedure as explained above.

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