Next Riigikogu to decide on adoption of EU whistleblower directive
The adoption of the EU's whistleblower protection directive will be decided by the next Riigikogu, elected after the March 5 election, Minister of Justice Lea Danilson-Järg (Isamaa) said on Thursday. She said Estonia may end up having to pay a fine for non-adoption.
Earlier this week the European Commission referred Estonia to the European Court of Justice for its failure to adopt the directive by the December 17, 2021 deadline.
The legislation ensures confidentiality for employees who report corruption of EU law at their workplace. Companies with more than 50 employees must create a reporting channel.
The government approved a draft and passed the first reading on January 26, 2022. It was supposed to enter into force the following summer, but parties added 300 amendments to the bill, stalling the process. The majority were presented by EKRE, with several also from SDE and Isamaa.
As the Riigikogu's term ends next week, the draft's adoption process will grind to a halt.
Lea Danilson-Järg said the draft's future will then be in the hands of the next Riigikogu and they can decide how to proceed.
The minister said Estonia's current draft does not differentiate between EU law or Estonian law and will apply to both.
"There is certainly a big difference here because the directive itself only deals with infringements of EU law. This draft was written in a slightly broader form. Unfortunately, this directive is quite detailed as to how the notification process should be. It is quite detailed and leaves very little room for Member States to find their own solutions. Isn't that why it seems like over-regulation?" she said.
She said parts of the directive will benefit Estonia if it is adopted.
Former Minister of Justice Maris Lauri (Reform) said the legislation was drafted and sent to MPs during the Center/EKRE/Isamaa coalition which ended in January 2021.
This means it was opposed by its own initiators and their "uncompromising" stance towards it came as a "surprise", she pointed out.
"I am not at all arguing that it would be better if some adjustments could be made to clarify or refine the draft. It is a sensitive issue and needs a substantive debate, but there was a lack of willingness on the part of those involved to have a debate," she said.
Lauri said when the law was being developed, risks were mitigated against malicious complaints which means the anonymity of the so-called whistleblower would not be guaranteed.
But this could be added to the draft, Lauri said.
Legal case may result in a fine
Danilson-Järg said it was decided not to adopt the EU directive into law by itself as there was not enough support. Crafting legislation takes a long time, she said.
"True, we have to take into account where Estonia comes from. This kind of 'harassment' and reporting of infringements is a negative sign. We remember the occupation's legacy very well and what it meant at the time. It is therefore very difficult to make the need for this directive clear to society," said the Minister of Justice.
Danilson-Järg said the directive is also too detailed and is too much for some member states.
She highlighted that the draft will not touch on private issues. Big companies also tend to have their own reporting mechanisms, she added.
"Even today, we have the means to whistle-blow in the case of workplace misconduct, not to mention the companies that have internal control systems and the means to do so," she said.
Danilson-Järgi and Lauri said other countries with similar histories have also raised concerns.
The minister said Estonia and other countries must defend their interests and explain their positions.
"The worst-case scenario is that Estonia is fined. The amounts depend on the court's assessment, so we shall see. There is also a small chance that if there is a common vision in the European Union — as there are quite a few countries that have not transposed — perhaps the directive could be amended in some respects, and that is not entirely out of the question," Danilson-Järg said.
The minister said, in her opinion, the best option would be for the government to submit a new bill similar to the current draft which includes the essential points.
Czech Republic, Germany, Spain, Italy, Luxembourg, Hungary and Poland have also not adopted the directive.
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Editor: Barbara Oja, Helen Wright