EUROPEAN
COMMISSION
Brussels, 6.12.2012
SEC(2012) 679 final
COMMUNICATION TO THE COMMISSION
Communication from Vice-President Šefčovič to the Commission on Guidelines on
Whistleblowing
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Guidelines on Whistleblowing
1. INTRODUCTION
1.1. General
Having procedures for raising concerns about fraud, corruption or other serious wrongdoing is
relevant for all responsible organisations and for the people who work there. While good
internal control systems can reduce the probability of something going seriously wrong, this
risk can never be reduced to zero. Where this risk materialises, the first people to realise or
suspect the problem will often be those who work in or with the organisation. Yet unless the
culture is one where employees believe that it is safe and accepted that such concerns are
raised, the risk is that people will stay silent. This denies the organisation an important
opportunity to detect and investigate the concern, to take any appropriate action and to protect
its assets, integrity and reputation.
The most effective way to encourage staff to report concerns is to provide assurance of
protection of their position. Clearly defined channels for internal reporting as well as safe and
accepted routes through which staff may raise concerns outside the organisation as an option
of last resort should be in place.
Viewed in this way, having whistleblowing procedures and whistleblower protection in place
is simply a question of good management and a means of putting into practice the principle of
accountability. They contribute to improving the diligence, integrity and responsibility of an
organisation.
It is against this background that rules on whistleblowing were adopted and included in the
Staff Regulations (articles 22a and 22b) in 2004. They complement the general principle of
loyalty to the European Union, the obligation to assist and tender advice to superiors (Article
21) as well as the rules on how to deal with orders which are considered to be irregular or
likely to give rise to serious difficulties (Article 21a).
While these rules have already triggered a number of significant investigations by the
European Anti-Fraud Office (OLAF), some staff may be reticent to make full use of the
whistleblowing procedure, because of a fear of negative repercussions on their reputation or
career. As part of the Commission's duty to have regard for the interests of officials
("devoir
de sollicitude"), it is necessary to ensure that members of staff who report serious
wrongdoings or concerns in good faith are afforded the utmost confidentiality and greatest
degree of protection against any retaliation as a result of their whistleblowing.
As whistleblowing arrangements are widely recognised as an important tool to detect fraud,
corruption and serious irregularities, it is important that staff fully understand the types of
situations where the obligation to "blow the whistle" applies, and to whom they should
address their concerns. Providing guidance on this issue is part of the Commission's overall
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ethics policy, which aims
inter alia at clarifying the rules regarding professional ethics in the
Commission1.
Accordingly, the Commission has issued the following guidelines, in agreement with OLAF.
1.2. Basic
principles
• Members of staff have a duty to report serious irregularities.
• For this purpose, members of staff must have a choice between a number of reporting
channels for whistleblowing. The principal channel is the normal chain of hierarchical
command. If staff consider it to be safer to bypass the normal chain of hierarchical
command, they must be able to do so. Under certain conditions, staff may address their
concerns to another EU institution as an option of last resort.
• Members of staff who report serious irregularities in good faith must not under any
circumstances be subject to retaliation for whistleblowing. They must be protected and
their identity must remain confidential if they so desire.
• The reported facts must be verified in the appropriate manner and, if they are confirmed,
the Commission will take all necessary steps to ensure the appropriate follow-up.
• The rights of defence of any person implicated by the reported incidents must be respected.
• Malicious or frivolous denunciations will not be tolerated.
1.3.
Scope of the policy
The Commission's whistleblowing rules and guidelines apply to all members of staff,
irrespective of their administrative position2.
1.4. Definitions
For the purpose of these guidelines, a whistleblower is a member of staff, acting in good faith,
who reports facts discovered in the course of or in connection with his or her duties which
point to the existence of serious irregularities. The reporting should be done in writing and
without delay.3
Under the whistleblowing rules, staff are obliged to report serious irregularities. In the present
context, serious irregularities are illegal activities, including fraud and corruption, and serious
professional wrongdoings. As the whistleblowing arrangements are essentially a detection
mechanism to bring cases to the attention of OLAF, the duty to report concerns only serious
1
See Communication from Vice-President Kallas to the Commission on enhancing the environment for
professional ethics in the Commission, SEC(2008)301 final, and the Practical Guide to Staff Ethics and
Conduct.
2
While the whistleblowing rules do not strictly speaking apply to seconded national experts, trainees,
interim staff and local agents, these categories of staff are also encouraged to make use of the
arrangements set out in this documents and the Commission undertakes to protect these categories of
staff against retaliation if they do so in good faith.
3
Prior to reporting, a staff member may seek guidance and support as described in section 5. This does
not have to be done in writing.
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professional wrongdoings, and particularly those that may be detrimental to the financial
interests of the European Union.
Accordingly, not every disclosure of any type of information qualifies as whistleblowing in
the sense of these rules. For example, the rules are not intended to apply to the reporting of
the following types of information:
•
Information already in the public domain (for example: newspaper articles, publicly
available audits);
•
Unsubstantiated rumours and hearsay;
•
Matters of a trivial nature;
•
Disagreements over legitimate policy;
•
Information not linked to the performance of one's duties.4
Neither do the rules apply to information for which specific procedures are available to staff:
•
Personnel issues where staff have a personal interest in the outcome. In these cases,
staff may wish to exercise their statutory rights, for example by lodging a request or
complaint with DG HR under Article 90 of the Staff Regulations5;
•
Harassment claims and personal disagreements or conflicts with colleagues or
hierarchy. In appropriate cases, staff may wish to address themselves to their Human
Resources Unit, to the Mediation Service6, to HR.B.5 (Equal opportunities and
working conditions) or to a confidential counsellor7, or to lodge a request for
assistance with DG HR under Article 24 of the Staff Regulations8.
Nor do the rules apply to disclosures that cannot be considered as reasonable or honest, such
as:
•
Abusive disclosures (repeated disclosures of alleged facts aimed merely at paralysing
a service);
•
Malicious, frivolous or potentially defamatory disclosures (i.e. false or unverifiable
accusations with the aim of harming another person's integrity or reputation).
"Good faith" can be taken to mean the belief in the veracity of the reported facts, i.e. the fact
that the member of staff reasonably and honestly believes the transmitted information to be
true. Good faith is presumed unless and until proven otherwise.
4
This is not to say that the Commission does not react to this information, but that the rules on
whistleblowing do not apply in this case.
5
http://myintracomm.ec.europa.eu/hr_admin/en/appeals/Pages/index.aspx
6
http://myintracomm.ec.europa.eu/serv/en/mediation/Pages/index.aspx
7
http://myintracomm.ec.europa.eu/hr_admin/en/equal_opportunities/respectful_working/harasse
ment/employee Pages/contacts.aspx
8
http://myintracomm.ec.europa.eu/hr_admin/en/appeals/Pages/assistance.aspx
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"Retaliation" is defined as any direct or indirect action or threat of action which is unjustly
detrimental to the whistleblower and resulting from the whistleblowing, including, but not
limited to, harassment, discrimination, negative appraisals and acts of vindictiveness.
"Confidentiality of identity" means that the identity of the whistleblower is known to the
recipient of the information, but is kept confidential vis-à-vis the person(s) potentially
implicated in the serious irregularity reported and used on a strict need-to-know basis.
"Anonymity" refers to the situation whereby the identity of the source of the information is
not known to the recipient.
Staff members who make a report in bad faith, particularly if it is based knowingly on false or
misleading information, shall not be protected and shall normally be subject to disciplinary
measures. The burden of proof in this context is on the Commission.
2. REPORTING PROCEDURES
Internal whistleblowing – first option
Staff members who, in the course of or in connection with their duties, discover that serious
irregularities may have occurred or may be occurring, are obliged to report this discovery
forthwith and in writing to either their immediate superior or to their Director-General or
Head of Service.
Internal whistleblowing – second option
If there is a concern that this disclosure may lead to retaliation or that the intended recipient of
the report is personally implicated in the serious irregularities, then the staff member may also
bypass this direct means of internal reporting and address his or her report to the Secretary-
General or directly to OLAF. OLAF may also be notified through the Fraud Notification
System9.
In any case, the recipient of the information is in turn obliged to transmit the information thus
received without delay to OLAF. Therefore, while the staff member concerned has a choice of
reporting channels, the information should ultimately reach OLAF in a short period of time.
External whistleblowing – option of last resort
Upon receipt of the information reported internally, OLAF or the Commission must give the
whistleblower within 60 days of receipt of the information an indication of the period of time
that it considers reasonable and necessary to take appropriate action.
If no action is taken within that period of time, or if the whistleblower can demonstrate that
the period of time set is unreasonable in light of all the circumstances of the case, he or she
may make use of the possibility of external whistleblowing as provided for in Article 22b of
the Staff Regulations.
Under this Article, if neither the Commission nor OLAF has taken appropriate action within a
reasonable period, the staff member who reported the wrongdoing has the right to bring his or
9
http://ec.europa.eu/anti_fraud/contact_us/index_en.html
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her concerns to the attention of the President of either the Council, the Parliament or the Court
of Auditors, or to the Ombudsman. In this case, the whistleblower protection continues to
apply.
However, the duties of discretion and of loyalty 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.
The Commission generally receives and handles large quantities of confidential information,
much of it highly sensitive and some of it of great commercial value. The Commission is
under the obligation to ensure that this confidentiality is maintained and Commission staff
members are therefore necessarily subjected to a duty of discretion.
External disclosure to other EU institutions, which are clearly able to hold the Commission to
account because of their institutional role, but are also themselves subjected to the duty of
discretion, therefore strikes an effective balance between the public interests of confidentiality
and loyalty and those of transparency and accountability.
It is up to the staff member to choose the most appropriate channel for reporting the serious
irregularities that they must disclose. However, if a matter is reported to a Commission
service that is not competent to deal with it, it is up to that service to transmit, in the strictest
confidence, the relevant information and documents to the competent service and to inform
the member of staff accordingly.
3. PROTECTION FOR WHISTLEBLOWERS
Any staff member who reports a serious irregularity, provided that this is done in good faith
and in compliance with the provisions of these guidelines, shall be protected against any acts
of retaliation. Regarding burden of proof, it shall be up to the person taking any adverse
measure against a whistleblower to establish that the measure was motivated by reasons other
than the 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 honest concern turned out to be
unfounded.
The protection continues to apply in cases of external disclosures, provided that the staff
member honestly and reasonably believes that the information and any allegation in it are
substantially true. In this context, account will be taken of any information the staff member
has had from the Commission and from OLAF following the initial internal reporting.
The following specific protective measures apply:
Confidentiality of identity
The protection of a person reporting a serious irregularity in good faith shall be guaranteed
first of all by the fact that their identity will be treated in confidence. This means that their
name will not be revealed to the person(s) potentially implicated in the alleged wrongdoings
or to any other person without a strict need to know, unless the whistleblower personally
authorises the disclosure of his/her identity or this is a requirement in any subsequent criminal
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law proceedings. In all other cases, the Commission is committed to keeping the identity of
the whistleblower confidential. To this end, the Commission has asked OLAF not to include
the identity of the whistleblower in the information about investigations that OLAF transmits
to the Commission.
In this respect the Court has ruled that disciplinary procedures that are opened on the basis of
information of which the source is not revealed are regular, as long as it does not affect the
possibility of the person who is subject to a subsequent disciplinary procedure to comment on
the facts or documents transmitted, or on the conclusions that the Commission draws from
them.10 The disciplinary rules of the Commission allow it to keep the identity of the
whistleblower confidential, while ensuring that the rights of defence of the person concerned
are fully respected.
Mobility
If the member of staff concerned wishes to be moved to another Commission department in
order to safeguard him- or herself against potential hostile reactions from his or her immediate
work environment, then the Commission will take reasonable steps to facilitate such a move.
In practice, those members of staff who consider it necessary to move to a different DG or
service may address themselves to the Director responsible for resources of his or her own
service or to the Central Career Guidance Service (SCOP)11 in DG HR, who will provide
them with counseling in order to identify the type of post which fits their profile and
professional aspirations.
In urgent and duly justified cases, the protective measure of a transfer in application of Article
7(1) of the Staff Regulations will be taken by the Director-General of DG HR, and by the
Secretary General of the Commission for staff working in DG HR.
Appraisal and promotion
Particular care will be taken during staff appraisal and promotion procedures to ensure that
the whistleblower suffers no adverse consequences in this context. Accordingly, the new
appraisal system12 provides for the possibility of the whistleblower to ask that the role of
appeal assessor is taken on by the Director-General of DG HR or by the Secretary General.
Anonymity
In order for the Commission to be able to apply protective measures, the staff member
concerned should identify him- or herself as a whistleblower to the institution, and to observe
the procedures as outlined above.
The protection which is offered reduces the need and justification for anonymity. Anonymity
deprives the investigative services of the possibility of asking the source for clarification or
more information and enhances the risk of frivolous, malicious or unreliable information.
10
Judgment of 15 May 1997, N / Commission (T-273/94, RecFP_p._II-289) (cf. point 81).
11
http://myintracomm.ec.europa.eu/hr_admin/en/career_management/Pages/index.aspx#1
12
Article 3 (2) of Commission Decision of 14 November 2011 on general provisions for implementing
Article 43 of the Staff Regulations.
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For these reasons, anonymous reporting is not encouraged.13
Penalties for those taking retaliatory action
No members of staff or managers of the Commission may use their position to prevent other
members of staff from complying with their obligation to report serious irregularities.
Any form of retaliation undertaken by a staff member against any person for reporting a
serious irregularity in good faith is prohibited. In such cases, disciplinary measures will
normally be taken.
Where members of staff consider that they have been the victim of retaliation as a result of the
disclosure of a serious irregularity, they shall be entitled to ask for assistance from the
Commission under Article 24 of the Staff Regulations and to request that protective measures
be adopted. Such requests should be addressed to DG HR.
Limits
As explained above, the whistleblowing provisions are concerned with disclosure of
information pointing to fraud, corruption and other comparable serious wrongdoings. They
are not intended to be used as 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 legitimate policies. Their purpose is to allow the staff member to
raise a concern about wrongdoings so that those in charge may look into it.
It should be noted that the protection may be lost if the staff member makes unwarranted or
damaging allegations that s/he cannot show to be honest or reasonable. The effect of this is
that wherever a staff member is contemplating a disclosure in the sense of these guidelines, it
is advisable to let the facts speak for themselves.
Similarly, if the staff member makes the disclosure for purposes of private gain – for instance
by selling the information to external parties – he or she will forfeit this protection as that
would not be a legitimate disclosure in the sense of the whistleblowing rules.
Finally, if the staff member is him- or herself implicated in the serious irregularities and
decides to come forward and report these irregularities, this fact may constitute a significant
attenuating circumstance in any ensuing disciplinary proceedings, but it is not a qualifying
disclosure in the sense of this policy and does not provide him or her with full protection
against disciplinary consequences on the basis of the whistleblowing rules.
4. FEEDBACK TO THE WHISTLEBLOWER
According to Article 22b of the Staff Regulations, OLAF or the Commission must give the
whistleblower an indication of the time needed to take appropriate action. If no action is taken
within that period of time, or if the whistleblower can demonstrate that the period of time set
13
As potential whistleblowers may hesitate to come forward with their identity for fear of retaliatory
action, the OLAF Fraud Notification System offers the facility to enter into an initially anonymous
dialogue with specialised staff before a person decides to come forward and make use of the
whistleblowing procedures.
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is unreasonable in light of all the circumstances of the case, he or she may address his or her
concerns to one of the other institutions referred to above.
It should be noted that the whistleblower is entitled to be informed within 60 days of the time
needed to take appropriate action, but that it is up to OLAF and/or the Commission to
determine the appropriate course of action.
5. GUIDANCE AND SUPPORT
While reporting serious irregularities is an obligation under the Staff Regulations, some staff
may be reticent to come forward and report their concerns. In order to help staff who are
unsure of whether or not certain facts should be reported, the Commission offers confidential
and impartial guidance and support to (potential) whistleblowers.
Guidance to potential whistleblowers in an early stage also helps to avoid ill-advised
reporting, which may cause frustration to the staff member concerned and may be detrimental
to the interests and the reputation of the Commission. This guidance therefore lessens the
risks of disclosure-related conflicts.
The guidance and support function was until recently offered by the judicial and legal advice
unit in OLAF. However, experience suggests that this is best carried out by a point of contact
not connected with the investigation function of OLAF, taking account of the fact that, in
particular, support to whistleblowers is essentially the responsibility of the Commission as
employer.
In agreement with OLAF, it has therefore been decided to transfer this function to the
Network of Ethics Correspondents of the Commission. Each DG and service of the
Commission has one or several designated Ethics Correspondents14, who are trained to
provide guidance to staff on ethical issues, including whistleblowing.
These designated officials will provide confidential and impartial guidance on, for example,
whether the information in question is covered by the whistleblowing rules, which reporting
channel may best be used for the information concerned, and which alternative procedures are
available if the information concerned does not qualify for whistleblowing ('signposting').
They will also be able to tender advice and guidance to staff members on protective measures
that the staff member may wish to seek following the reporting.
Naturally, this guidance function is without prejudice to the possibility of staff members to
consult their line manager, or a specialised service15.
In addition, the web-based Fraud Notification System of OLAF gives potential
whistleblowers who hesitate to come forward the opportunity to enter into a dialogue with
OLAF investigators, which allow these staff members to verify whether the information in
their possession fall within the remit of OLAF.
In case of doubt, staff are encouraged to seek the guidance offered to them when
contemplating a disclosure under the whistleblowing rules.
14
http://myintracomm.ec.europa.eu/hr_admin/en/ethics/Pages/index.aspx
15
Examples are OLAF, IDOC, DG HR.B.1 (ethics, rights and obligations) and SG.B.4 (public service
ethics).
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6. ROLE OF MANAGEMENT
The duty on managers to notify OLAF of information received on the basis of the
whistleblowing rules does not of itself discharge them from their own responsibilities to
tackle the wrongdoing.
Managers will therefore have to reflect on whether the evidence provided reveals
shortcomings that could be redressed or requires other measures in addition to the
transmission of the information to OLAF. In particular, if following such information it
occurs that a procedural or organisational change could prevent the risk of serious
professional wrongdoings in the future, such measures should be considered and, where
appropriate, taken as soon as possible. Care should be taken that any such measure does not
harm any future OLAF investigation into the reported facts. In case of doubt, managers are
therefore advised to consult OLAF before taking any such measures.
7. COMMUNICATION AND AWARENESS-RAISING
In order to increase the awareness of the whistleblowing arrangements amongst staff, these
guidelines will be given adequate publicity through the internal communication channels in
the Commission and will be included in the course material of the Commission's courses and
trainings on ethics and integrity.
8. REVISION
The practical application and effectiveness of these whistleblowing guidelines will be
evaluated at the end of a period of three years following their adoption. In light of the results
of this evaluation, these guidelines may be revised as appropriate.
9. FINAL PROVISION
This Communication replaces the Communication of Vice-President Kinnock to the
Commission of 9 February 2004 on how to enhance effective application of the
whistleblowing rules and protection of whistleblowers (SEC(2004 151/2), which is hereby
abrogated.
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ANNEX 1: Staff Regulations – articles on whistleblowing
Article 22a
1. Any official who, in the course of or in connection with the performance of his duties,
becomes aware of facts which gives rise to a presumption of the existence of possible illegal
activity, including fraud or corruption, detrimental to the interests of the Communities, or of
conduct relating to the discharge of professional duties which may constitute a serious failure
to comply with the obligations of officials of the Communities shall without delay inform
either his immediate superior or his Director-General or, if he considers it useful, the
Secretary-General, or the persons in equivalent positions, or the European Anti-Fraud Office
(OLAF) direct.
Information mentioned in the first subparagraph shall be given in writing.
This paragraph shall also apply in the event of serious failure to comply with a similar
obligation on the part of a Member of an institution or any other person in the service of or
carrying out work for an institution.
2. Any official receiving the information referred to in paragraph 1 shall without delay
transmit to OLAF any evidence of which he is aware from which the existence of the
irregularities referred to in paragraph 1 may be presumed.
3. An official shall not suffer any prejudicial effects on the part of the institution as a result of
having communicated the information referred to in paragraphs 1 and 2, provided that he
acted reasonably and honestly.
4. Paragraphs 1 to 3 shall not apply to documents, deeds, reports, notes or information in any
form whatsoever held for the purposes of, or created or disclosed to the official in the course
of, proceedings in legal cases, whether pending or closed.
Article 22b
1. An official who further discloses information as defined in Article 22a to the President of
the Commission or of the Court of Auditors or of the Council or of the European Parliament,
or to the European Ombudsman, shall not suffer any prejudicial effects on the part of the
institution to which he belongs provided that both of the following conditions are met:
(a) the official honestly and reasonably believes that the information disclosed, and any
allegation contained in it, are substantially true; and
(b) the official has previously disclosed the same information to OLAF or to his own
institution and has allowed the OLAF or that institution the period of time set by the Office or
the institution, given the complexity of the case, to take appropriate action. The official shall
be duly informed of that period of time within 60 days.
2. The period referred to in paragraph 1 shall not apply where the official can demonstrate that
it is unreasonable having regard to all the circumstances of the case.
3. Paragraphs 1 and 2 shall not apply to documents, deeds, reports, notes or information in
any form whatsoever held for the purposes of, or created or disclosed to the official in the
course of, proceedings in legal cases, whether pending or closed.
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ANNEX 2: WHISTLEBLOWING REPORTING CHANNELS
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Document Outline