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

[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.]

Part I of this post looked at how the final version of the EU Whistleblowing Directive 2019/1937 adopted last year fails to include gender equality and anti-discrimination, either as a standalone area of EU law or as part of the EU social policy acquis, within its scope of application. Part II turns the focus to the legislative discussions that led to the Directive, what the legislators considered and (seemingly) failed to consider, and the concrete implications of these choices on the advancement of gender equality in the European Union.

The Directive as could have been: the legislative discussions and the debate around workers’ rights

An analysis of the (publicly available) steps of the legislative iter does not reveal any record of gender equality or gender-based violence being considered by the legislators as topics in their own right. These notions do feature to some extent in the working papers as concerns workers’ rights. Indeed, a key point in the debate surrounding the prospected Directive’s material scope was whether to include the EU social policy acquis (in particular Articles 153 and 157 TFEU), which as seen in Part I has express gender equality dimensions, within the remit of the Directive and thus cover reports concerning workers’ health and safety and working conditions. This question ran through most of the negotiations, with some express references to the gender equality sphere of workers’ rights.

The European Commission Proposal for a Directive, put forward on 23 April 2018, did not include workers’ rights within the material scope. In its Impact Assessment, the Commission discarded the option of founding a Directive solely on Article 153 TFEU, citing the risk that this might open the floodgates to “work-related individual grievances”.

However, once the Proposal left the Commission, calls were made almost immediately to bring workers’ rights within the scope of the Directive. In its Opinion dated 18 October 2018, the European Economic and Social Committee noted that the Proposal did not cover protection of workers and “discrimination, harassment or violence in the workplace etc”, and called on these subjects to be included.

In its Report tabled for plenary on 26 November 2018, the Committee on Legal Affairs in charge of the procedure file in the European Parliament (Rapporteur Virginie Rozière), adopted a Draft European Parliament Legislative Resolution on the Proposal with proposed amendments. Amendment 87 added a new area to the material scope provision, namely “(xa) employment, working conditions, workers’ rights and the principle of equal opportunities and treatment between men and women at work”. To reflect this addition, Amendment 1 expanded the legal base of the Directive to also include Articles 153(1)(a), (b) and (e) and 157(3) TFEU, and Amendment 152 inserted a section with relevant legislation for this area in the Annex, including certain Equality Directives.

In support of these suggestions, the Report attached an Opinion of the CLA dated 25 October 2018 on the appropriateness of the additional legal bases introduced by the amendments tabled in Committee. It concluded that Articles 153(1)(a),(b) and (e) and 157(3) TFEU provided for the ordinary legislative procedure in such a way that was compatible with the existing legal base of the Commission’s Proposal.

The Council of the European Union acknowledged that this was a point of contention in its Progress Report of 25 February 2019, where it recognised that among the key issues identified during negotiations with Parliament was material scope, in relation to which “[t]he main outstanding issue concerns the European Parliament’s request to add (…) the protection of workers (Articles 153 and 157 TFEU).”

An inter-institutional agreement was reached on a draft compromise text (the contents of which do not appear to be available) between the Commission, Council and Parliament on 15 March 2019. From this moment on all references to workers’ rights disappeared in the working papers.

On 16 April 2019, the European Parliament adopted at first reading a text that bore no sign of workers’ rights or of relevant equality legislation. In the 15 April 2019 debate held in Parliament, a statement by Věra Jourová of the European Commission expressly referred to a “compromise” having been made on material scope, whereby the Commission committed to specifically assessing the issue of including the social policy area in the Directive during the review scheduled for 2025. This commitment now lies in Article 27(3) of the Directive on ‘Reporting, evaluation and review’.

Without access to the minutes of the trilogue discussions, the opposing arguments that ultimately led to the exclusion of workers’ rights – and the equality provisions along with them – remain largely unknown. Since Rapporteur Rozière is widely regarded as having fought a hard battle to enhance the protection levels of the Directive on various fronts, it is plausible that certain critical aspects were sacrificed to save others. The Commission’s reference to a compromise seems to confirm this. In a conference on ‘Gender Equality in Business’ held by the OECD while negotiations were still ongoing, Rapporteur Roziére participated in a panel on ‘The Gender Implications of Whistleblowing’. Here she stated that she had intended to add “the male/female equality question” into the Directive but that unfortunately there was a lack of convergence on the issue.

Until 2025, it is up to the discretion of Member States, with the political-cultural barriers such discretion entails, to determine whether to extend whistleblower protection beyond the confines prescribed by the Directive.

A note on complementarity

In its Proposal, the Commission explained that the Directive’s whistleblowing rules “will run parallel to existing protection in the field of other EU legislation: (i) on equal treatment, which provide for protection against victimisation as a reaction to a complaint or to proceedings aimed at enforcing compliance with this principle and (ii) on protection against harassment at work”. The Commission cited specific pre-existing equality and workers’ rights legislation, including Recast Directive 2006/54/EC, as already containing such protections (see footnotes 20 and 21 of the Explanatory Memorandum).

Reflective of this approach, Recital 21 of the Directive states that its provisions “should be without prejudice to the protection granted workers when reporting breaches of Union employment law” and in particular to Article 11 of Council Directive 89/391/EEC, which “already requires Member States to ensure that workers or workers’ representatives are not placed at a disadvantage because of requests or proposals they make to employers (…)”.

These statements appear to imply that, for those sectors not included in the Directive, the pre-existing equality and workers’ rights framework provides a sufficient level of protection such as to obviate the need for protection under the new Directive. A closer look at the legislation cited hardly reveals comparable reporting mechanisms or a comparable framework of protection to that contained in Chapter VI of the Directive on the prohibition of retaliation.

Even so, it is unclear why the Directive chose not to apply to workers’ rights the same ‘complementarity’ approach it applied to other sectors of EU law that already had pre-existing whistleblowing rules but were nonetheless brought within the remit of the Directive.

Indeed, the Directive is not the first time whistleblowing is being regulated at EU level. The financial services sector was arguably one of the most developed in terms of whistleblowing protections and obligations in the pre-Directive era. Yet the EU legislators still chose to bring this sector under the umbrella of the Directive, prompting the question (which I addressed here with Donato Vozza) whether the Directive effectively brought anything new to the table for financial service providers. Article 3(1) and Recital 20 of the Directive clarify that such pre-existing protection, as provided in the financial services sector, is to be maintained and complemented by its high standards, so as “to ensure consistency and legal certainty across Member States”. By contrast, the segregated approach adopted in relation to workers’ rights seems discordant with the very harmonisation aim on which the Directive is founded.

A lacuna that neglects an urgent reality of whistleblowing and conflicts with EU policies

The EU Whistleblowing Directive provided a unique chance to step up protections for those who report on gender inequality, discrimination and violence occurring in work-related contexts. The (apparent) failure of the legislators to even discuss, let alone legislate, the gender dimensions and implications of whistleblowing is a significant shortcoming.

First, this failure overlooks an alarming reality that has been widely reported on by the EU’s own institutions and agencies. In its 2014 EU-wide survey ‘Violence against women’, the Fundamental Rights Agency found that one in three women have experienced physical or sexual violence during their adult lives, making this a social and public health crisis. Within this picture, 32% of all victims in the EU reported that the perpetrator was a superior, colleague or customer. Whistleblowing – as a mechanism allowing workers to report such occurrences – has a fundamental role to play in eradicating these phenomena. Yet the lack of protection afforded to #metoo whistleblowers continues to ingrain a trend of underreporting as pervasive as the phenomenon itself. In short, gender inequality and violence may be one of the areas that most needs the kind of protection the Directive purports to bestow.

Second, this omission conflicts with EU policies. Beyond failing to take into account the dictates of the EU gender equality acquis, this omission also falls short of the EU’s commitment to ‘gender mainstream’ – i.e. to actively take into account the objective of gender equality when formulating and implementing all laws, policies and activities – as prescribed under Article 8 TFEU. This is particularly surprising since the lead of the Commission’s Proposal was the Commissioner for Justice, Consumers and Gender Equality. Such an approach would not only have considered gender equality from a material scope perspective, but could also have examined the gendered experiences of whistleblowing, as studies begin to reveal a greater vulnerability of female whistleblowers to retaliation and public shaming (see Dr. Ford during the Kavanaugh hearings as but one example). Indeed, the “definite power imbalance in the employment relationship” acknowledged by the Commission is only exacerbated by the gender stereotypes that still reign in the modern workplace. The failure to incorporate a gender perspective within this legislative milestone comes at the expense of the advancement of gender justice more broadly, an objective that would benefit from the heightened transparency and enforcement that whistleblowing generates. The EU legislators are not blind to the issues that the #metoo movement brought to light. Recently, the Commission published a Proposal for a Council Decision authorising Member States to ratify the ILO Violence and Harassment Convention (No. 190), yet this once again hits the ball to the national court. Perhaps, far from heeding to the cry that Time’s Up, when it comes to #metoo, the EU legislators are simply not ready.

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.