Czechia - Transposition of the EU Directive on Whistleblowing
A draft law on whistleblower protection to transpose the EU Directive on whistleblowing has passed a crucial vote in the parliament of the Czech Republic.
After much delay, the scheduled discussion on the draft Bill took place during the 103rd special meeting of the Chamber of Deputies and a vote on the draft Bill passed by a majority of votes on 12 May 2021.
MPs did not however support a proposal to accelerate deadlines for negotiation which would speed up the legislative process.
Experts and the opposition Pirate party fear the draft Bill now won´t be discussed again before parliamentary elections in early October. They also criticized the proposed external body designated for handling whistleblowing concerns lack of independence from the Ministry of Justice.
The draft Bill will now be discussed in the relevant parliamentary committees.
A draft law on whistleblower protection to transpose the EU Directive on Whistleblowing has been included on the agenda for a special meeting of the Chamber of Deputies in the Czech Republic.
After much delay, the scheduled discussion on the draft Bill is due to take place during the 103rd special meeting of the Chamber of Deputies on May 12, 2021 at 15.00 pm.
Experts have said that the session is likely to be the last chance for the Bill to be discussed in the current parliamentary term. The Government’s proposal is included at the end of the agenda and only after the Pirate MPs draft law to protect whistleblowers will be discussed (with undisclosed drafts falling under the table.) There therefore remains much uncertainty at the likelihood of success for the law.
The agenda of 103rd special meeting of the Chamber of Deputies can be found here.
Draft law lacking support
Despite Czechia making substantive progress in the transposition of the EU Directive on whistleblowing protection, the governments draft law is fading during the legislation process due to lack of official support. It remains unclear whether the draft law will be passed before the autumn elections.
A recent article in Ekonom magazine discusses the whistleblowing reporting mechanism as both an obligation and a benefit for companies. Draft laws to protect whistleblowers have been traditionally left to politicians facing the end of the parliamentary term with a bill being drafted every election period since 2009, with none yet approved.
The current draft law remains prior to first reading which means it is not certain whether it will be discussed in the Chamber of Deputies before the end of the parliamentary term. Experience shows that legislators need at least seven months to achieve this, with only seven months until elections.
Mere approval of the law will not be enough. A concerted high-level campaign should follow, to raise awareness and educate the public on the importance of reporting unethical or even illegal practices and may need reminding on the importance of whistleblowing to overcome historic cultural connotations. As MPs will be involved in the election campaign, there will be little time available.
Lukáš Černohorský, MP for the Pirate party has commented on the missed chance to discuss the protection of whistleblowers in the current election period: “This key anti-corruption law will once again fall under the table, although for the last 10 years, all governments have volunteered to protect brave whistleblowers. I tried to save the situation yesterday by proposing that the government and Pirate versions of the legislation be discussed as a matter of priority, but most of the MPs were against it.” Adding: “I am afraid that this has squandered the last chance for the Whistleblower Protection Act to go through the standard legislative process during this parliamentary term - i.e. by October this year. If this does not happen, the whole process will have to start again.”
Draft Bill delayed
A draft Bill on the protection of whistleblowers to implement the EU Directive on Whistleblowing was scheduled for ‘general debate’ during the 87th meeting of the Chamber of Deputies, but was not heard. This is the first stage of the legislative process necessary to progress the legislation. As the Draft was not discussed, unfortunately the future timeline for adopting the law is now uncertain.
The Czech Republic had recently been considered as the only EU Member State to make ‘substantive progress’ in a recent Progress report of the transposition of the EU Directive on Whistleblowing after the Ministry of Justice prepared a well-designed Draft law recently, approved by the Government and presented to the Chamber of Deputies on Feb 9, 2021. Following the delay, it now remains ‘parked’ at this preliminary state: see legislative process infographic.
The length of the legislative process averages 9 months in the Chamber of Deputies. There is a substantial number of draft Bills awaiting debate and approval before the upcoming elections in early October. Drafts are listed on the agenda of the Chamber of Deputies and are guided by the priorities of governmental parties which have not to date supported their own proposal on whistleblowing.
NGO Oživení is monitoring the process. The question now for civil society is whether work achieved so far be completely wasted? Political parties will need to be convinced to discuss the Draft as a priority after the Autumn elections – whether they do so remains yet unknown.
The deadline for transposition of the Directive is 17 December 2021. Failure to adopt Czech law represents a great legal uncertainty for whistleblowers, employers and other stakeholders, as the Directive will remain only partially implemented.
The Czech Government has approved a draft law on whistleblowing protection and supplementary amendments.
The Minister of Justice Marie Benešová held a press conference, following a meeting of Government (announcing the development) and stating that the new law reflected the EU Directive on Whistleblowing and was an important mechanism in the anti-corruption framework.
The new legislation aims to ensure the protection of a wide range of persons when they disclose information on breaches of the law learned about in connection with their work, both in the private and public sectors.
Benešová promised to advocate for the legislation to be adopted during the current parliamentary term; stating:
"I am glad that we are succeeding in the process of transposition quickly, because I also see in the adoption of the law savings in public and private funds as a result of early detection of illegal actions."
The draft law text can be read here.
NGO’s, Oživení, Frank Bold and Transparency International CZ, who have been monitoring the preparation of the draft legislation have raised concerns about the proposed law's shortcomings. Following an assessment, recommendations for improvement were made, but some of the provisions of the final text remain problematic - in particular the lack of independence of the state agency responsible for whistleblowing.
The Czech Government were due to convene and discuss a Draft Law on whistleblowing at a meeting of the 25th of January 2021 following the closure of the procedure to collate inter-ministerial comments. Deliberations were suspended and re-scheduled for the next meeting. The reasons for the delay was explained by Jana Maláčová, Ministry of Labor and Social Affairs at a press conference on 25th of January 2021. Maláčová explained that there were still some remaining ambiguity between the approach of the Ministry of Justice, Ministry of Interior and Ministry of Labor and Social Affairs. It was deemed necessary to fine-tune the intended role of the public office of the Labor Inspectorate in the proposed framework and that such detailed technical provision needed to be defined in the legislation. The Draft Law is publicly available in the legislative library.
The Government Council for the Coordination of the Fight against Corruption recommended to the Government of the Czech Republic to approve the proposal on its meeting on Nov. 24, 2020. At the same time, it recommended that the bill and the related amending law be submitted to the Chamber of Deputies (the 1st reading) by the end of January 2021. On Thursday, Nov. 26 2020, the Legislative Council of the Government suspended the discussion of the Draft Law, the text will be modified according to the comments of the members. The government should decide on the protection of whistleblowers by the end of this year. The law still has a chance to be approved in this election period, even in time within the deadline set by the European directive.
Czech NGO Oživení reflects on the legislative procedure, finding that the attitude of government officials (especially the Ministry of Finance) seems absurd: an external body (whether it will be a department of the Ministry of Justice, the Office of the Ombudsman or the Office for the Supervision of Political Parties and Movements) will get no budget, only new agenda. The effective implementation of the law is thus jeopardized.
The Ministry of Justice has submitted the Draft Law on the Protection of Whistleblowers to the Government on Sept. 30, 2020. The Governmental Legislative Council and its individual working commissions have 60 days to review it. The meeting of the Governmental Working Committee for Whistleblowing as well as the meeting of the Government Council for the Coordination of the Fight against Corruption are planned to discuss the Draft and the comments of the Governmental Legislative Council later on in November.
What has changed following the inter-ministerial commentary procedure:
the protection is provided to all whistle-blowers without distinction (i.e. procedural protection in court proceedings); the Draft explicitly states that it is possible to report anonymously; the protection of confidentiality of whistleblowers, persons concerned and of the disclosure itself has also been improved; the Draft also clarified the relationship with other relevant legislation (e.g. AML legislation). The Draft newly used the option (by the EU Directive) to exclude information in the area of the so-called substantial security interest to disclose. Cons: The problematic external reporting body remained within the authority of the Ministry of Justice; Also, the Draft in its current form (due to the explanatory memorandum attached to the Draft) raises doubts as to whether it will or will not be necessary for the whistleblowers to fulfil the condition of good faith.
Following the inter-ministerial commentary procedure on the Draft Law on the Protection of Whistleblowers in the Czech Republic (in August 2020), the Governmental Working Committee for Whistleblowing (Pracovní komise předsedy Rady vlády pro koordinaci boje s korupcí k whistleblowingu) discussed the comments of its members (NGOs including). The criticism was directed to the design of the “agency” which is formed as a department of Ministry of Justice as the so-called external notification system, while representatives of non-profit organizations argued for its lack of independence. The Ministry of Justice does not agree with such an opinion. Nevertheless, based on the request of non-profit organizations and some other Ministries, the Ministry of Justice will prepare a more detailed impact assessment and cost calculation of variants, which is the agency covered by the Office for Supervision of Political Parties and Political Movements and the Office of the Public Defender of Rights. The Draft is to be presented to the Government in September 2020 in order to have the chance to be passed in a standard legislative process in this election period. However, the Council of the Government for the coordination of the fight against corruption, which is to review the draft ahead of the meeting of the Government, is scheduled to November 2020.
The representatives of the public sector, academics, as well as CSO´s reps, will meet at an international online conference organized by University of Lodz on Sept. 25, 2020, to review the whistleblowing protection in V4 countries, France and Slovenia and to search for an effective model of protection.
So far, there is no legal regulation in the Czech Republic that would comprehensively address the protection of whistleblowers. A good law can significantly strengthen the protection of the public interest and prevent wasteful behavior. Although the current proposal of the Ministry of Justice meets the requirements for a functional system of whistleblower protection in many respects (eg by a broad definition of whistleblower or by reflecting the importance of internal reporting), it does not fulfill the full potential of the law. NGOs see the main problem in the nature of the body (called the “Agency”) that whistleblowers will turn to. They also propose simplifying the distinction between types of notifications, strengthening the principles of confidentiality of notifications, and explicitly allowing anonymous notifications. In addition, the proposal does not transpose the European directive sufficiently on a number of points.
The new law on the protection of whistleblowers is criticized by non-profit organizations, Pirates and the opposition parties. The agency is to be subordinated directly to the Ministry of Justice, Lukáš Černohorský, the head of Pirate MPs, stated ‘I am afraid, it will not gain the trust of its citizens’.
The comment procedure is open for 30 days. Deputy Minister Jeroným Tejc told the press. The Czech legal system still does not contain the regulation of so-called whistleblowing. The proposal introduces, among other things, new offences, both the offence of retaliation against the whistleblower and the offence of knowingly false notification.
The Czech Minister of Justice has recently promised to have the legislative draft ready by September 2020 as a response to NGOs, Rekonstrukce státu appeal to support the whistleblowers by speeding up the legislative process and by adopting safe and effective internal whistleblowing channels immediately after a joint NGOs appeal.
However, it is worth remembering that the Czech Ministry of Justice has promised to present the legislative draft in November 2019, February 2020, April 2020, now September 2020. The English translation of the Reconstruction of the State article is below:
‘The newly proposed Anti-Corruption Whistleblower Protection Act should soon enter the interdepartmental round of comments. In response to a recommendation of the Rekonstrukce státu (Reconstruction of the State) initiative, the Justice Minister Marie Benešová promised to speed up the implementation of the European regulation. The new law should protect and support public administration staff who encounter a wrongdoing in the workplace and are willing to blow the whistle. This anti-corruption measure could significantly improve protection of the public interest and prevent uneconomic behaviour.
Speeding up the adoption of the law that would protect whistleblowers reporting corruption was recommended to the government by Rekonstrukce státu in its Nezhasínat! (Don’t Switch Off the Lights!) project in early May. In order to address the impacts of the coronavirus pandemic, the state is spending hundreds of billions of public money and quickly buys protective equipment. That is why it’s now particularly important to strengthen transparency and prevent corruption in public administration.
We made an appeal to the government to improve whistleblower protection as soon as possible and provide a tool that would make it possible to report corruption behaviour securely. “There is no Czech law that would comprehensively address whistleblower protection. Potential whistleblowers currently have no way to report a wrongdoing that would provide a guarantee of anonymity and prevent the risk of them being identified and retaliated against. That’s one of the reasons why employees as well civil servants blow the whistle only very rarely,” explains Marek Zelenka from the NGO Oživení who is Rekonstrukce státu’s expert on this issue.’
‘Minister Benešová promised to speed up discussion In response to our recommendation, the Justice Minister Marie Benešová promised that she would try to submit the whistleblower protection bill as soon as possible. “I agree that a regulation on the protection of whistleblowers who report corruption and other wrongdoings can save public money, prevent damage to the environment and protect other public interests. This regulation must therefore become part of the Czech legal environment as soon as possible,” she said in a letter addressed to Rekonstrukce státu.
Following a European regulation, the government is obliged to implement whistleblower protection in Czech law by December 2021. So far, the process has been far from smooth. Even though the legislative plan expects the bill to be submitted by September this year. “Given the expected length of the legislative process in the Parliament and the necessity of this legal regulation, I can promise that I will attempt to submit the bill earlier,” says the minister. She also added that in the coming weeks, the draft bill should be sent to the other ministries for comments.
“We appreciate that Minister Benešová considers the whistleblower protection act a priority. Anti-corruption organisations will be ensuring that the state establishes a trustworthy body that whistleblowers will be able to turn to and that will effectively protect them against retaliation,” says Věnek Bonuš, an analyst at Rekonstrukce státu, in response to the letter.’
In the Czech Republic, civil servants from the Ministry of Justice are preparing a bill on the transposition of EU Directive on whistlblowing.
The Czech Whistleblowing Working Committee discussed the possibilities of transposing the draft European Whistleblower Directive into law. The Council of Ministers must approve it at European level before transposition by the Ministry of Justice, which should take place in October this year.