The EU Whistleblowing Directive and #MeToo: A Missed Opportunity for the Advancement of Gender Equality in the EU (Part I)

[Liemertje Julia Sieders is a New-York qualified attorney, working as an in-house Compliance & International Sanctions Specialist with a multinational company in Rome, Italy. She writes on gender and corporate liability issues as Senior Contributor with the CSR Blog.]

On 23 October 2019, the European Parliament and the Council of the European Union adopted the long-awaited Directive 2019/1937 on the protection of persons who report breaches of Union law. The Directive is widely regarded as a significant achievement in both strength and scope, setting the bar high for mandatory whistleblower protection and extending its protective wing to persons reporting on breaches of EU law in a wide range of sectors, from consumer protection, to financial services, transport safety and others.

Yet the material scope of the Directive, however broad, does not include the area of gender equality and anti-discrimination (as inclusive of the prohibition of gender-based violence and sexual harassment). In the “package of measures” initially put forward by the European Commission in 2018, EU equality law featured as little more than a footnote. The area of workers’ rights, which constitutes the prime policy area for the promotion of gender equality in the EU and could have provided an (albeit partial) avenue to cover gender equality and harassment issues arising in the workplace, also failed to make the cut. Indeed, gender equality did feature marginally in the working papers as part of a wider debate on whether to bring workers’ rights within the remit of the Directive, debate that – as will be seen – ultimately (and somewhat mysteriously) resulted in workers’ rights being excluded.

The failure to include the EU gender equality acquis within the Directive, whether as a standalone area or as a workers’ rights issue, is a shortcoming with dire consequences not only for the individuals concerned but also for the advancement of gender equality more broadly. Under its current set up, the groundbreaking revelations of abuse of power for sexual gain and of pervasive disparities in pay that have spurred a global #metoo awakening would not receive the crucial protections afforded by the Directive.

This two-part post looks at the lack of intersection between the EU legislative response to whistleblowing and gender equality, and the concrete impacts of this omission. While the analysis focuses on gender equality and gender-based violence, it hopes to stimulate a broader reflection of relevance also to whistleblowing and inequality in spheres beyond sex and gender.

The EU Whistleblowing Directive: what it brings to the table and the horizontal vs sectoral dilemma

In the pre-Directive era, whistleblower protection at the EU level was fragmented and sectorial, with only certain Union acts providing for protection in certain areas of EU law. At the national level, only ten Member States had comprehensive frameworks in place to protect whistleblowers. The lack of a harmonized approach was in part reflective of the differing conceptions of whistleblowers, some viewing them as heroes and others as traitors. This fragmentation created loopholes in protection that exposed whistleblowers to severe forms of retaliation without remedy and significantly hindered reporting to the detriment of the public interest.

Profoundly reshaping the conversation around whistleblowers as guardians of the rule of law, the Directive represents undeniable progress in the area of whistleblower protection. It adopts a wide definition of “reporting person” (Articles 4 and 5), it envisages an “optional” rather than “tiered” approach to reporting channels (doing away with mandatory internal reporting), and it provides whistleblowers with a high level of protection against various forms of retaliation (Article 19).

One particular point of praise has been the broad material scope of the Directive. However, while the range of sectors covered is wide, it is not all encompassing. The Directive covers only those who report breaches of Union laws applicable in specific sectors (Article 2.1). This restrictive approach was the result of extensive debate surrounding whether to adopt a wide horizontal approach or extend the existing sectoral approach to whistleblowing within the EU. The horizontal approach – such as that envisioned by the European Parliament – involved covering all workers in the public and private sectors without limitation. By contrast, the European Commission, finding that there was no legal basis in the Treaties allowing the EU to regulate whistleblowing in general, opted rather to widen the existing EU sectoral approach (see White 2018 for an analysis of the challenges raised by this). Hence, the legal basis is currently founded on a selection of TFEU articles listed in paragraph 1 of the Preamble to the Directive.

The Directive as is: gender equality and harassment not included

The current Directive does not protect whistleblowers who report on breaches of EU law governing gender equality and anti-discrimination.

First, the EU gender equality acquis is not included as a standalone area of law within the sectoral reach of the Directive. Gender equality and anti-discrimination are fundamental principles of EU law enshrined, among others, in Articles 2 and 3 of the Treaty of the European Union (TEU), Articles 8, 10 and 19 of the Treaty on the Functioning of the European Union (TFEU), and Articles 21 and 23 of the EU Charter of Fundamental Rights. These values are implemented in a series of Equality Directives that can be found here. Though the prohibition of gender-based violence and sexual harassment is not expressly mentioned in the TFEU or comprehensively addressed in EU law (see Petroglou 2019), these phenomena have been expressly recognised as a form of discrimination prohibited under EU gender equality legislation (see for e.g. Directive 2006/54/EC). Yet none of these provisions are mentioned within the Directive’s material scope. The Directive in its entirety does not feature a single reference to gender issues, women’s rights or sexual harassment in work-related contexts. The words ‘harassment’ and ‘discrimination’ are cited only as prohibited forms of retaliation under Article 19.

Including EU gender equality as a standalone sector of EU law within the scope of the Directive may have faced some resistance, particularly in the Council. EU law on gender equality is still in evolution as it emerges out of the confines of the employment sphere and a comprehensive legislative response to gender-based violence is still lacking, with some debate surrounding the extent of the EU’s legislative competence to act in these areas. However, other less controversial avenues could have been pursued to bring #metoo whistleblowers within the protection of the Directive, but were not.

Gender equality and gender-based violence are not only strictly “gender issues”. They are also labour rights and human rights issues, and thus could have indirectly fallen within the remit of the Directive had its material scope extended to these areas of law. The EU gender equality framework is largely rooted in the sphere of workers’ rights. The provisions of the TFEU that form the foundation of the EU’s social policy acquis, in particular Articles 153 and 157 of the TFEU, have express gender equality dimensions. Article 153(1)(i) enshrines the principle of equal opportunities and equal treatment for men and women at work, while Article 157 enshrines the principles of equal treatment and equal pay. The legislation referred to as the EU’s “Gender Equality Directive” – Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) – expressly applies to the employment sphere. Gender inequality and violence are also internationally recognised as constituting human rights violations.

Yet the Directive’s scope also fails to extend to these two areas of law. The issue of workers’ rights is only marginally touched upon in Recital 21 of the Directive and, as will be seen in Part II, has been postponed for further review in 2025 under Article 27(3). Human rights suffered a similar fate and were granted only a fleeting mention in Recital 109.

The inclusion of workers’ rights was the subject of a to-and-fro between Parliament and Council during the negotiations. A draft of the Directive was amended to include workers’ rights but the addition disappeared in subsequent drafts, implying that its exclusion was not the result of an oversight but rather of a conscious choice of the legislators. Part II will look at the steps of the legislative iter,which saw moves to add and subsequently remove workers’ rights – and thus relevant equality laws – from the protective reach of the Directive, and the implications of this omission for #metoo whistleblowers.

The views and opinions expressed in this article are personal to the author and are not attributable to any entity with which the author may be affiliated.