WHISTLEBLOWING IN THE EUROPEAN INSTITUTIONS

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WHISTLEBLOWING IN THE EUROPEAN INSTITUTIONS

• Joaquín Bayo Delgado
• Deputy EDPS

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Background

• Regulation (EC) 1073/1999 concerning
  investigations conducted by the European
  Anti-Fraud Office (OLAF)
• Commission Decision 1999/352/EC establishing OLAF
• Inter-institutional Agreement of 25 May 1999
  between the European Parliament, the Council of
  the European Union and the Commission of the
  European Communities concerning internal
  investigations by OLAF
• Staff Regulations of Officials of the European
  Communities (amendments by Regulation 723/2004)
• Conditions of employment of other servants of the
  European Communities (idem)
• Article 29 Working Party Opinion 1/2006
• External Study on Whistleblowing Rules (EP
  Committee on Budgetary Control COCOBU- )
• Ongoing prior checking of OLAF internal
  investigations

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• Whistleblowing conformity with
• Regulation (EC) No 45/2001 of the European
  Parliament and of the Councilof 18 December 2000
  on the protection of individuals with regard to
  the processing of personal data by the Community
  institutions and bodies and on the free movement
  of such data

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1.Legitimacy of the whistleblowing system
(Article 5 of Regulation 45/2001)

• (b) processing is necessary for compliance with a
  legal obligation to which the controller is
  subject
• Article 22a of Staff Regulations
• 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.
• Internal whistleblowing

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1.Legitimacy of the whistleblowing system
(Article 5 of Regulation 45/2001)

• (b) processing is necessary for compliance with a
  legal obligation to which the controller is
  subject
• Article 22a of Staff Regulations
• 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.
• Internal whistleblowing

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1.Legitimacy of the whistleblowing system
(Article 5 of Regulation 45/2001)

• (b) processing is necessary for compliance with a
  legal obligation to which the controller is
  subject
• Article 22b of Staff Regulations
• 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.
• External whistleblowing

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1.Legitimacy of the whistleblowing system
(Article 5 of Regulation 45/2001)

• (b) processing is necessary for compliance with a
  legal obligation to which the controller is
  subject
• Article 22b of Staff Regulations
• 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.
• External whistleblowing

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2. Data quality and proportionality (Article 4 of
Regulation 45/2001

• i) Possible whistleblowers
• All officials and other servants
• All members ? President or OLAF
• (Article 4(6)(a) Regulation 1073/1999
• Article 2(4) Inter-institutional Agreement)
• ii) Possible incriminated persons (interested
  party)
• All members, officials and other servants

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2. Data quality and proportionality (Article 4 of
Regulation 45/2001

• iii) Confidentiality / anonymity
• - A duty, by writing, but also special tel. n.
  67732
• - Confidentiality as the rule
• - During OLAF investigations, no further
  guarantee
• - Anonymity is possible outside the scheme (e.g.
  free phone number)
• - Article 22a(3) of Staff Regulations assures
  protection
• - SEC (2004) 151/2 specifies
• gt transfer to other department
• gt special appeal in evaluation and promotion

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2. Data quality and proportionality (Article 4 of
Regulation 45/2001

• iv) Proportionality and accuracy of data
• - data necessary within the scope of OLAF
  competence
• - other data referred to other instances (e.g.
  IDOC)
• v) Data retention periods
• - OLAF investigation results into a report
  transmitted for further disciplinary or criminal
  proceedings
• - OLAF investigation ends up without further
  actions

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3. Clear and complete information about the
scheme (Article 11 of Regulation 45/2001)

• General information on the system given in
• gt http//europa.eu.int/comm/reform/2002/conduct_c
  hapter7_en.html7_3
• gt training courses, etc.
• Some room for improvement from data protection
  perspective
• Information to whistleblowers
• gt special letter
• gt information before interview, etc.
• Some room for improvement from data protection
  perspective

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4. Rights of the incriminated person

• i) Information rights (Art. 12 Regulation
  45/2001)
• gt Article 1 of Annex IX of Staff Regulations and
• gt Article 4 of Model Decision of
  Inter-institutional Agreement
• Some room for improvement from data protection
  perspective
• ii) Access, rectification and erasure (Art. 13
  Reg. 45/2001)
• Article 1 Annex ... In any event, conclusions
  referring by name to an official may not be drawn
  once the investigation has been completed without
  that official concerned having been given the
  opportunity to comment on facts concerning him.
  The conclusions shall make reference to these
  comments.
• iii) Possible limitations (Art. 20 Regulation
  45/2001)
• (a) the prevention, investigation, detection and
  prosecution of criminal offences
• (b) an important economic or financial interest
  of a Member State or of the European Communities,
  including monetary, budgetary and taxation
  matters
• (c) the protection of the data subject or of the
  rights and freedoms of others
• gt Identity of whistleblower covered by
  limitation to the right of access
• gt Other limitations on a case-by-case basis

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5. Security of processing operations (Article 22
of Regulation 45/2001)

• i) Material security measures
• ii) Confidentiality of reports
• iii) Possible disciplinary measures against mala
  fide whistleblowers

6. Management of whistleblowing scheme

• i) Through the hierarchy to OLAF
• ii) Directly to OLAF (COM internal, other
  institutions external)
• iii) External whistleblowing to Presidents and
  Ombudsman

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7. Transfers to third countries and international
organizations (Article 9 of Regulation 45/2001)

• i) Adequate protection cases
• ii) Exceptions (Article 9(6) (7))
• iii) Working on model MOU and register (Art. 9(8))

8. Compliance with notification requirements
(Article 27(2) of Regulation 45/2001)

• Prior checking by the EDPS
• (a) processing of data relating to suspected
  offences, offences, criminal convictions or
  security measures
• (b) processing operations intended to evaluate
  personal aspects relating to the data subject,
  including his or her ability, efficiency and
  conduct

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Other schemes

• Anti-harassment schemes
• gt Several anti-harassment schemes (Council,
  CoA)
• gt The use of the whistleblowing scheme is
  inappropriate
• Financial Irregularities Panel
• gt only applies to members of staff acting under
  the Financial Regulation
• gt whistleblowing takes precedence in serious
  cases
• Data protection whistleblowing
• gt Article 33 of Regulation 45/2001
• gt Complaints by Community staff to the EDPS

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Thank you
European Data Protection Supervisor
(EDPS) Contrôleur Européen de la Protection des
Données (CEPD) Mail address Rue Wiertz 60 - MO
63 B-1047 Brussels   Office Rue Montoyer 63, 6th
floor Tel [phone] Fax
32-2-2831950 Email edps_at_edps.eu.int Website
www.edps.eu.int   Peter Hustinx, EDPS/CEPD Tel
32-2-2831901 GSM 32-476760376 Email
phustinx_at_edps.eu.int   Joaquín Bayo Delgado,
Assistant EDPS/CEPD Adjoint Tel
32-2-2831902 GSM 32-476760919 Email
jbayodelgado_at_edps.eu.int