of the remarks received in the context of the
Ombudsman's invitation to comment on the draft
internal rules on whistleblowing
The revised version of the Staff Regulations for officials of the European Union
('SR') that entered into force on 1 January 2014, obliges all EU institutions,
bodies, agencies and offices to adopt internal rules covering, in particular, the
protection of whistleblowers. During the first half of 2014, the Ombudsman
drew up a draft for such internal rules, following a consultation with her staff.
In order to be as transparent as possible, and also with a view to drawing on the
experience and knowledge of other persons in this area, on 24 July 2014, the
Ombudsman invited comments from interested third parties on the draft rules.
The deadline to submit such comments was 30 September 2014.
Overview of the responses
The Ombudsman received nine responses to the invitation to comment.
These responses originate from NGOs active in the area of furthering
transparency (such as Transparency International, Public Concern at Work, and
Blueprint for Free Speech), specialised whistleblower protection associations
(for example, Whistleblower-Netzwerk e.V.), persons with experience as
whistleblowers, as well as from the French High Authority for transparency in
Most comments received underline the importance of the Ombudsman's
internal rules as a future model for other EU institutions to adopt. They thus
stress the crucial importance of drawing up the best possible rules.
Summary and assessment of the comments received
In the following, the comments that were received will be summarised. Some of
the suggestions made by third parties were taken up in the final version of the
Ombudsman's internal rules, either because the Ombudsman did not agree with
them or because she considers that there is no need to address these issues in
her internal rules on whistleblowing. As regards those suggestions that were
not taken up in the internal rules, the reasons for doing so will be explained
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In order to make it easier to follow the analysis, the full text of the draft internal
rules is quoted in the text below.
The final version of the Ombudsman's internal rules, which was adopted on 20
February 2015, is also available on the Ombudsman's website.
Article 18 of the internal rules provides that these rules will be reviewed within
one year of their adoption. This review will provide an opportunity to decide
whether further changes are needed.
General comments received
It was stated that whistleblowing policies and arrangements aim to resolve the
situation before it breaks down into a legal dispute. Hence, the Ombudsman
was invited to draft her internal rules, which are intended for the use of her
staff members, in the simplest language possible.
Many contributors stated that while it is true that, according to Article 22 SR,
there is a legal obligation
for EU staff to report serious irregularities, referring
instead to an expectation or invitation
might be more appropriate. In short, the
focus should be shifted from the legal
obligation to blow the whistle to a moral
duty for staff.
The Ombudsman's internal rules on whistleblowing are based on the relevant
provisions of the Staff Regulations. Given that the Staff Regulations refer to
whistleblowing as a legal obligation, we have to follow the same logic.
The specific provisions of the draft internal rules
Article 1 - Scope
The rules apply to everyone working in the Ombudsman's office, irrespective of
their administrative position or status, including seconded national officials
This article should be clarified by further specifying to what extent the internal
rules apply to external parties.
Moreover, it should be expressly stated in this section that the whistleblowing
rules are not applicable to matters concerning general administrative staff
complaints or grievances, such as the contesting of an annual appraisal report.
As regards the first comment, the present rules constitute internal rules, that is
to say, rules directed at the Ombudsman and her staff. The issue of
whistleblowing by third parties is addressed in Article 17, which we believe is
sufficiently clear. See also recital j) of the final version of the internal rules.
Concerning the second comment, it should be noted that it clearly emerges from
Article 2 that whistleblowing refers to (actual or perceived) 'serious
misconduct'. The further clarifications provided in Article 2 as regards this
central term make it abundantly clear that disputes about issues that do not
concern serious misconduct, such as issues concerning an official's staff report,
are not covered by this concept.
Article 2 - Definitions
For the purpose of these rules, a whistleblower
is a person who, in good faith,
reports facts which he or she honestly and reasonably believes suggest the
existence of serious misconduct in the Ombudsman's Office.
includes, for example, fraud, corruption, theft, serious
violation of rules on public procurement, and serious violation of professional
Disclosure is made in good faith
if the whistleblower honestly and reasonably
believes that the information disclosed, and any allegation contained in it, is
substantially true. Good faith is presumed unless and until proven otherwise.
means a head of unit, director, or the secretary general of the
The definition of a whistleblower
should be simplified and become less legalistic.
Many contributors provided their own wording in this respect.
The definition of serious misconduct
allegedly sets a very high and unclear
barrier. The definition should thus be modified by, for example, including an
explicit reference to democratic values and the rule of law.
The list of examples should be extended, to provide as much clarity as possible.
Moreover, the reference that is made to the existence of serious misconduct or
wrongdoing in the Ombudsman's Office
is said to be misleading and not in line
with Article 22 SR, as staff members must report irregularities of which they
become aware during the performance of their duties
, and thus even if the illegalities
concern another EU institution.
Many comments demand that the reference to making a report in good faith
deleted, as motives should not play any role in this regard. What matters is
instead that the person reporting any potential irregularity honestly believes
that the information reported is true and accurate.
The current definitions are based on the Staff Regulations and take account of
the case-law of the Court of Justice as regards whistleblowers. We have tried to
make them as clear as possible. In our view, they are easily understandable also
to non-lawyers. The list of examples is sufficient in our view. It is difficult to see
how a reference to democratic values and the rule of law could add further
We take the view that the concept of whistleblowing concerns serious
misconduct within the institution for which the whistleblower works. Article
22b of the Staff Regulations is visibly based on the premise that the institution
to which the whistleblower turns can take 'appropriate action'. However, it is
difficult to see what action (apart from informing OLAF), say, the European
Medicines Agency could take if one of its servants were to report to it about
serious misconduct within the European Ombudsman's Office. Moreover, it is
not easy to see what the 'prejudicial effects on the part of the institution to
which he belongs' could be, against which a whistleblower is to be protected
under Article 22b of the Staff Regulations. The Ombudsman, who is mentioned
in Article 22b of the Staff Regulations, will obviously examine any reports about
(actual or perceived) serious misconduct in other EU institutions, bodies,
agencies and offices with utmost attention and take the action that is necessary
to address the issues raised.
The term 'good faith' is defined in Article 2. Using this short expression makes
it possible to avoid having to quote the lengthy and rather legalistic definition
for which it stands each time the issue arises. We think that this adds to the
clarity and reader-friendliness of these rules.
Article 3 - Procedure
In accordance with Article 22a of the Staff Regulations, members of the
Ombudsman's staff have the obligation to report, in writing, suspicions of
Such reports may be made to a manager, or to the Ombudsman.
Article 22a of the Staff Regulations also provides for the possibility to report to
the European Anti-Fraud Office (OLAF).
Article 22b of the Staff Regulations provides for the additional possibility to
report to the President of the Commission or of the Court of Auditors or of the
Council or of the European Parliament, if certain conditions are met.
Instead of referring to the Staff Regulations, many comments requested that this
article set out the specific steps for blowing the whistle and thus provide for a
clear and to some degree pre-defined procedure for investigating the
underlying matter in this respect, also for the sake of clarity. As part of this
procedure, whistleblowers as well as persons implicated should have a right to
be heard before a final decision as regards the report is taken.
It was underlined that, in bigger organisations, the persons tasked with
investigating irregularities are usually attached to the higher management. It
may thus be reasonable and appropriate to entrust this to a member of the
Ombudsman's Private Office.
It was also observed that the Ombudsman should explicitly state that no person
in a conflict of interest shall contribute to the investigation of the report made
by the whistleblower.
Some comments ask that whistleblowers not only be allowed to report to a
manager and to the Ombudsman, as well as the other institutions referred to in
Article 22, but also to third parties, such as the media or a member of
parliament, under certain conditions.
Moreover, it was mentioned that the contact details of OLAF should be
One contribution referred to the fact that the EU courts have found that a
whistleblower has no legal standing to ask the court to verify if a correct
investigation of a disclosure has been made. The argument here was that this
investigation is only done in the public interest and is not a legally enforceable
right of the whistleblower. The Ombudsman should thus explicitly provide for
such a right.
As regards the procedure to be followed. two aspects need to be distinguished -
the way in which the whistleblower submits his or her report on the one hand
and the examination of this report on the other hand. We believe that the
present rules provide sufficient guidance as to what a whistleblower could or
should do. The rules on the internal inquiry to be conducted on the basis of the
whistleblowers' report are laid down in the Ombudsman's rules of 4 November
2004, a summary of which is now annexed to the final version of the internal
In so far as the person to carry out the inquiry is concerned, it is not advisable
to lay down too precise a rule. For instance, adopting a rule that the inquiry is
to be entrusted to a member of the Ombudsman's Cabinet (that is to say, her
Private Office) is bound to cause problems if the allegations of serious
misconduct concern a member of that Cabinet.
It is obvious that the Ombudsman will never entrust the inquiry to a person
who would find himself or herself in an actual, potential or apparent conflict of
interest. The same applies as regards persons assisting in such an inquiry.
As regards the possibility to report serious misconduct also to third parties, like
the media or politicians, it should be recalled that Article 22b of the Staff
Regulations provides for the possibility of turning to the Presidents of certain
EU institutions, including the President of the European Parliament, who is an
MEP. It is thus fair to assume that the legislator chose not to foresee the
possibility for whistleblowers to turn to other persons or institutions. The
Ombudsman has to respect this choice. In any event, the fact that the Staff
Regulations (and, by consequence, the present rules) do not foresee the
possibility for a whistleblower to turn to third parties like MEPs or the press
does not mean that this possibility is completely excluded. It simply means that
a member of staff wishing to do so cannot rely on the Staff Regulations and the
Ombudsman's internal rules.
OLAF's contact details are available on the Internet. There is therefore no need
to repeat them in a set of internal rules, in particular in view of the fact that
these rules are addressed at staff working for an EU body.
The Ombudsman strives to ensure that citizens are properly treated by the
institutions, bodies, agencies and offices of the EU and that the latter comply
with the principles of good administration. This also applies as regards
whistleblowers reporting about actual or perceived serious misconduct in her
own Office. However, what the Ombudsman is unable to do is to grant citizens
legal rights that are not foreseen by EU law, as interpreted by the Court of
Justice. In a union based on the rule of law such as the EU, only the legislator
can grant such rights.
Article 4 - Guidance and support
Potential whistleblowers may approach a designated staff member to seek
guidance and support.
The Ombudsman acknowledges the important role played by the Staff
Committee and may request that it propose one of its members, or another staff
member of its choice, to fulfil this role. Where the Staff Committee is not in a
position to comply with such a request, the Ombudsman shall designate such a
Potential whistleblowers may also approach a manager, normally their
immediate superior, for guidance and support.
To the maximum extent permitted by the Staff Regulations, guidance and
support to potential whistleblowers shall be provided in confidence.
Where a report of serious misconduct has been made, the whistleblower may
request guidance and support, which shall be provided to the maximum extent
possible in the circumstances.
It was noted that this article does not cover extreme cases in which a
whistleblower may not be able to trust anyone inside the Ombudsman's Office.
In view of the above, the creation of an external
guidance and support body for
all EU institutions was considered to be appropriate by several contributors, so
that truly independent
advice can be provided.
The lack thereof may also put managers in a difficult situation if they are
expected not only to investigate reports made, but also to advise potential
whistleblowers. It was thus deemed to be appropriate to delete managers as a
source of advice.
Contributors also stated that external guidance and support free of charge
should also be offered.
One contribution calls on the Ombudsman to consider that, when seeking
guidance, a whistleblower should be provided with a personal risk assessment
related to his or her report by the relevant advisor. Information about remedies
should already be provided at this stage.
As regards the creation of an external guidance and support body, it should be
recalled that OLAF already provides independent advice free of charge, even to
potential whistleblowers that approach it anonymously.
All the Ombudsman's managers share the Ombudsman's view that
whistleblowers contemplating making a report about serious misconduct in the
Ombudsman's Office should be encouraged to do so. It is therefore difficult to
see why they should have difficulties in advising potential whistleblowers. The
Ombudsman's internal rules make it clear that whistleblowers will be protected
against any acts of retaliation or reprisal. It is therefore not easy to see what
purpose a 'risk assessment' could have. As regards possible remedies, these are
laid down in the present rules.
Article 5 - Information guarantees
A whistleblower who reports to a manager or to the Ombudsman has the
following information rights:
(i) to be provided with an acknowledgement as rapidly as possible and, in any
event, within five working days;
(ii) to be told which staff member is responsible for dealing with the matter;
(iii) to be told, as soon as possible and, in any event, no later than 60 days
following receipt of the report, of the time it will take the Ombudsman's Office
to take appropriate action;
(iv) to be informed of any major steps taken in the course of any internal
investigation based on the whistleblower's report, including the result of this
investigation and any referral to OLAF. This information shall be provided
within 30 working days.
This article was widely welcomed.
It was added, however, that the Ombudsman could also pro-actively inform a
whistleblower of the remedies available to him or her should he or she suffer
from retaliation in the future.
Informing a whistleblower of available remedies constitutes good
administration. However, and as already indicated above, the present rules
already make it clear that whistleblowers will be protected against any acts of
retaliation or reprisal. The rules also make it clear what remedies a member of
staff has in case he or she believes that there has nevertheless been retaliation or
Article 6 - Protection of whistleblowers
The Ombudsman shall protect a whistleblower against any acts of retaliation or
When an individual who is involved in serious misconduct subsequently
decides to blow the whistle, the fact of having reported the matter shall be
taken into account, in his or her favour, in any disciplinary procedure.
The protection should be extended to persons falsely accused of being
whistleblowers, as well as to those supporting whistleblowers, for example by
providing evidence for their allegations or by protecting them against
It was further stated that this provision could be improved by including
evidence-preserving requirements for the Ombudsman, since often no action is
taken as a result of the lack of information.
In case a whistleblower believes he or she was treated badly after having
reported serious irregularities, the burden of proof should explicitly lie on the
Ombudsman to prove that the measures negatively affecting the whistleblower
are not related to his or her reporting, but are related to, for example,
inadequate professional performance etc.
The Ombudsman encourages whistleblowing. There can therefore be no
question of any member of staff being 'accused' of whistleblowing, regardless of
whether that person has blown the whistle or not. Moreover, any member of
staff who feels that he or she is treated unjustly can make a request for
assistance under Article 24 of the Staff Regulations.
Concerning the suggestion to introduce evidence-preserving requirements for
the Ombudsman, this is a procedural issue that should be left to the person(s)
entrusted by the Ombudsman with carrying out the inquiry into the
As regards the question of the burden of proof, it should be noted that this
issue was already addressed, in the interest of the whistleblower, in Article 2
(see the definition of 'good faith') and Article 10 (as regards the character of any
measure taken with regard to a whistleblower).
Article 7 - Confidentiality
The Ombudsman shall protect the identity of a whistleblower and the
confidentiality of the report received to the greatest extent possible. The name
of a whistleblower shall not be disclosed to any person potentially implicated in
the reported misconduct or to any other person, except where absolutely
necessary, for example, where procedural fairness requires identification of the
source of the information.
Where a manager or the Ombudsman refers the matter to OLAF, the identity of
the whistleblower shall not normally be disclosed to OLAF.
Whistleblowers who consider that the Ombudsman has not adequately
protected their confidentiality and their related personal data may complain to
the European Data Protection Supervisor.
There was wide agreement between contributors that it should be possible to
make a report anonymously
, albeit with an indication of the resulting limitations
that this places on whistleblowers' protection, the investigation of complaints,
and the protection of the rights of individuals implicated.
Moreover, it was explicitly mentioned that confidentiality should be guaranteed
unless the identity of the whistleblower is required to be disclosed by law
disclosed with the whistleblower's express agreement
. Additionally, staff members
who breach the confidentiality should be subject to disciplinary measures in
order to guarantee the highest possible protection of whistleblowers.
Given that the Staff Regulations are based on the premise that whistleblowing
is an obligation, anonymous whistleblowing does not need to be considered in
the present rules. However, the Ombudsman will obviously carefully examine
any report on serious misconduct in her Office that was submitted to her
Disclosing the identity of a whistleblower without proper justification would be
a serious violation of the duties and obligations to be respected by members of
the Ombudsman's staff, which would expose the person concerned to the risk of
disciplinary measures. However, there is no need to deal with this issue in the
Article 8 - Mobility
Where, as a protection against any possible retaliation, a whistleblower wishes
to be moved to another unit within the Office (including moving from
Strasbourg to Brussels or vice versa), the Ombudsman will endeavour to
facilitate this request.
Where, for the same reasons, a whistleblower seeks a transfer to another EU
body, the Ombudsman will support and assist with this request as much as
This provision was considered to be very positive, and no substantive
comments were received.
Article 9 - Appraisal and promotion
Managers shall ensure that, when appropriate, whistleblowing is favourably
recognized in staff appraisal and promotion procedures.
They shall ensure that whistleblowers suffer no adverse consequences in this
Whistleblowing shall only be mentioned in the whistleblower's staff report, if
he or she explicitly requests or agrees that such a reference should be included.
This article was widely welcomed, too.
For sake of legal clarity, the deletion of 'when appropriate' was however
recommended. The term 'favourably recognised' leaves a lot of margin in any
Article 10 - Penalties for persons taking retaliatory action
Any form of retaliation against a whistleblower is prohibited. 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.
If such retaliation occurs, the Ombudsman will take appropriate action,
including, if necessary, disciplinary measures, against any member of staff
It is a widely shared view that, if retaliation takes place, it would be
appropriate to offer some sort of compensation, including financial.
The statement "if such retaliation occurs, the Ombudsman will take appropriate
action, including, if necessary, disciplinary measures against any member of
staff concerned." was considered weak, especially in the light of some
whistleblower protection legislation in certain countries imposing prison
sentences and considerable fines.
The internal rules make it clear that no retaliation against whistleblowers will
be tolerated. Where such retaliation nevertheless takes place, appropriate
redress will be offered to the whistleblower. This may include compensation of
a financial nature.
The Ombudsman is not in a position to impose prison sentences or fines.
However, any member of staff who takes retaliatory action against a
whistleblower exposes himself or herself to disciplinary measures. The
Ombudsman will sanction any such action vigorously.
Article 11 - Remedies
Members of the Ombudsman's staff who blow the whistle and who consider
that they have not received adequate support and protection may request
assistance in accordance with Article 24 of the Staff Regulations.
An express decision, including reasons, shall be given to the whistleblower as
rapidly as possible and in any event no later than two months after he or she
submitted the request.
Where the whistleblower regards the decision as unsatisfactory, he or she may
make a complaint, within three months, under Article 90(2) of the Staff
If the whistleblower so requests, the Ombudsman shall offer the opportunity to
present the complaint orally. The whistleblower has the right to be
accompanied by a member of the Staff Committee and/or any other person at a
meeting for this purpose.
In dealing with Article 90(2) complaints the Ombudsman may, with the
whistleblower's agreement, consult a person or persons from outside the
Ombudsman's Office in order to ensure that the procedure is as fair and
equitable as possible.
Unless a longer period is justified in the circumstances, the Ombudsman's
express decision on the complaint shall be given to the whistleblower no later
than two months after he or she submitted the complaint.
One contributor noted that it should be clarified that this provision only applies
to staff members in the sense of the Staff Regulations.
As the complaint procedure might be considered to be insufficient, there should
also be protection or compensation, including financial compensation, for
example to enable the whistleblower to go to court.
Whistleblowers should be able to request a review of the decision of the
Ombudsman as regards the whistleblowing report.
Where the whistleblower presents a complaint orally to the appropriate
hierarchy, minutes should be made. The whistleblower should also have the
right to make comments on their content.
Article 24 of the Staff Regulations applies, directly or indirectly, to all members
of the Ombudsman's staff (officials, temporary agents and contract staff). Given
that the internal rules are directed at the staff of an EU body that can be
expected to know the rules applicable to EU staff, there is no need to clarify the
above fact in the internal rules.
As regards the alleged inappropriateness of the complaint procedure, a
whistleblower who is not satisfied with the response given to his or her report
by the Ombudsman is always at liberty to turn either to OLAF or to any of the
heads of institutions listed in Article 22b of the Staff Regulations.
To the extent that the comment made concerns the result of an internal
complaint (based on Article 90(2) of the Staff Regulations, it should be taken
into account that there are only two possible alternatives. First, if the
Ombudsman considers that the complaint is well-founded, she will do all she
can to undo the mistake that was made and to assist the whistleblower. Second,
if the Ombudsman considers that the complaint is unfounded, there is no
possible basis on which she could provide financial assistance to a member of
staff who wishes to bring an action against the Ombudsman's decision.
However, the member of staff concerned is entitled to ask the Court of Justice
for legal aid in order to bring a case before the court.
Where the whistleblower presents a complaint orally, it is obvious that minutes
of the meetings will be prepared and that the whistleblower will be invited to
make comments. However, this appears to be common sense and does not need
to be included explicitly in the rules.
A malicious or frivolous report does not constitute whistleblowing and may
lead to disciplinary measures, particularly if false accusations are made.
It was pointed out that this article does not use the phrasing of Article 22(b) SR.
Moreover, it was underlined that there are fundamental problems with the
possibility to discipline a whistleblower if the concerns he or she raises are
'malicious' or 'frivolous', as it may be far too easy for those involved in
wrongdoing to use the question of motive as a means to attack the
whistleblower. Therefore, more caution should be used in considering the
circumstances in which an individual can be disciplined for having questioned
malpractice. It was suggested that a whistleblower should be subject to
disciplinary measures only where the information provided was false and the
staff member was aware of this at the time the concern was raised. The burden
of proof in this case should lie with the institution.
The Ombudsman should extend her support to those members of her staff who
suffered from knowingly false information reported.
Finally, it was suggested that as this article in the draft internal rules does not
currently have a title, it could be titled 'Misuse'.
The only comment that needs to be addressed here (as all the others are
reflected in the final version of the internal rules) is the second one. The
Ombudsman will obviously take appropriate action to protect members of her
staff who have been accused of serious wrongdoing even though the person
making these accusations knew that they were wrong. However, there is no
need to address this issue in the internal rules.
Article 13 - Rights of persons implicated
Staff members implicated in reports of serious misconduct shall be informed in
good time of the allegations made against them. Where there is a substantial
risk that such notification would jeopardise the ability of the Ombudsman to
effectively investigate the allegation or gather the necessary evidence,
notification may be deferred as long as such risk exists.
Upon termination of any internal investigation, the staff members concerned
shall be informed as rapidly as possible of the results of the investigation.
These obligations apply where the whistleblower reports to a manager or to the
Ombudsman. Where a whistleblower reports to OLAF, it is for the latter to
decide how to proceed.
Some of the guarantees given to whistleblowers should also be extended to
persons implicated in reports. For example, these latter should have a right to
Persons implicated should not suffer any detrimental effects as long as the
irregularities which they are accused of having committed have not been
confirmed in the context of a proper investigation.
Data protection should also apply to persons implicated.
Here as well, the only comment that needs to be addressed here (as all the
others are reflected in the final version of the internal rules) is the second one.
The Ombudsman will respect the presumption of innocence also as regards
inquiries into reports submitted by whistleblowers. However, adequate
measures that are necessary to protect the interests of all persons involved (for
example, asking a person accused of harassment temporarily to move to
another unit) must remain possible even before the investigation has produced
Article 14 - Training and awareness-raising
These rules and the relevant procedures shall be drawn to the attention of
persons when they join the Ombudsman's staff and not less than once a year
Training sessions shall be organised with the aim of ensuring that all members
of the Ombudsman's staff understand that readiness to blow the whistle on
serous misconduct plays an essential role in maintaining a culture of integrity
in the Office.
Training sessions shall be organised for managers on how to deal with
This article was well received.
It was mentioned that training should be repeated regularly.
Specific training should also be organised for managers on how to deal with
whistleblowers' reports and on how adequately to protect whistleblowers.
It was also observed that it may be appropriate if staff members are regularly
informed about relevant case-law and key developments affecting
The Ombudsman is grateful for the specific suggestions that have been made
and which she will take up when her services will provide training sessions to
staff, either in general or with a specific focus . However, she does not consider
it necessary to include such details in her internal rules. It may be useful to add
that a first training session on whistleblowing for all staff was held on 15
January 2015 Article 15 - Reporting
The annual activity report to the budgetary authority shall include a section on
whistleblowing by members of the Ombudsman's staff. It shall also give details
of the activities mentioned under Article 14 above.
This section was widely welcomed.
It should specify however what should be reported, for example the number of
disclosures, types, numbers resolved, reasons for not investigating etc.
Article 16 - External whistleblowing
Every person who enters into a contract with the Ombudsman's Office shall be
informed (i) that it is possible to raise suspicions of suspected serious
irregularities either with the Ombudsman or with OLAF and (ii) that making
use of this possibility in good faith will not result in any retaliation, reprisal or
other negative action on the part of the Ombudsman's Office.
The Ombudsman's Office shall also, whenever appropriate, consider
encouraging contractors to adopt whistleblower rules of their own.
In the view of many contributors, this article could be more specific. There
appears to be a need to be more explicit about the possible context, the external
whistleblowers' duties and rights and also about the level of protection that the
Ombudsman can offer to these persons. Of course, if the scope of the definition
of a whistleblower is extended to include external whistleblowers, then this
section becomes redundant.
Clarifications should also be provided about the distinction between external
whistleblowers under Article 22(b) SR and persons reporting serious
irregularities to the Ombudsman in the context of a complaint.
The Ombudsman has reviewed the wording of the relevant article. However,
given the fact that the internal rules are based on the Staff Regulations, which
do not apply to persons not belonging to the staff of the EU, it is not possible to
extend the scope of these rules to third parties. To cite but one important issue,
such third parties are under no obligation to blow the whistle.
The relationship between external whistleblowers and persons reporting
serious irregularities to the Ombudsman in the context of a complaint is clear
enough. The submissions of external whistleblowers who allege serious
misconduct on the part of other EU institutions, bodies, agencies and offices are
considered as complaints and handled as such. This is not the case where a
third party alleges the existence of serious misconduct within the Ombudsman's
own Office, given that the Ombudsman cannot examine complaints against
herself or her staff. However, such submissions will be carefully examined by
the Ombudsman and remedial action will be taken, wherever necessary. In such
cases, the Ombudsman will endeavour also to extend the whistleblowing
provisions to external informants, in particular by safeguarding their identity
and by providing them the same information guarantees as those granted to
whistleblowers whom are subject to the Staff Regulations.
Article 17 - Data protection
Any processing of personal data in application of these rules is subject to
Regulation (EC) N° 45/2001 and shall be carried out in accordance with the
Ombudsman's notification on whistleblowing. Staff members shall be informed
of their data protection rights in this area through the privacy statement
prepared as part of that notification.
Managers should also be informed about their duties in this regard and a
violation of these duties by anyone should be subject to disciplinary measures.
Moreover, it was pointed out that the personal data of persons implicated in a
whistleblower's report should also explicitly be protected.
All the Ombudsman's staff (including managers) is and continues to be
properly informed about the need to comply with data protection rules. This
concerns personal data of each and every member of staff. The Ombudsman's
Data Protection Officer plays a vital role in this context.
A violation of these obligations is likely to expose the person concerned to the
risk of disciplinary measures. however, there is no need to address this issue in
the present rules.
Article 18 - Review
These rules shall be reviewed within one year of their adoption, with a view to
deciding whether they need to be supplemented or revised.
Before deciding on any changes to these rules, the Ombudsman shall consult
the Staff Committee.
Annual reviews were welcomed.
It was also mentioned that the results of each review should be made public.
The results of the reviews will be made available to the public.
Article 19 - Entry into force
The rules shall enter into force on the day of their adoption.
No substantive comments were received as regards this provision.