Time to reconsider Strasbourg’s whistleblower case law

On October 2019, the EU adopted Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (Directive) following the proposal for a Directive introduced by the Commission on April 2018. The new approach taken in the Directive to protect whistleblowers differs from the concept developed by the European Court of Human Rights (ECtHR). In its case law on freedom of expression, the Strasbourg Court generally expects whistleblowers to report grievances first within the organisation and it applies a good faith and a public interest test. In contrast, to be protected as a whistleblower, these elements are not required by the Directive.

This begs the question: How will the Strasbourg Court deal with these differences in future cases? In this post, we argue that the ECtHR should reconsider its case law and align it with the Directive in order to ensure the same level of protection for all Member States of the Council of Europe (CoE). Given the fact that the Resolution 2300(2019) of the Parliamentary Assembly of the CoE welcomed the Directive and invited all CoE Member States to adopt its provisions, we will likely see a change of direction in the case law of the ECtHR towards the Directive. The expected change in precedent would lay another corner stone to a coherent and comprehensive whistleblower protection in Europe. 

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• Time to reconsider Strasbourg’s whistleblower case law, European Law Blog