Can I invoke whistleblower protection despite the not – implementation of the directive by the Polish government?

It looks like a Polish law providing appropriate protection for whistleblowers will finnaly be enacted soon. But what about those who need protection now? This article is dedicated to them.

Opportunities for legal whistleblower protection in the contex of the lack of national implementation.

The whistleblowing directive, officially known as a Directive (EU) of the European Parliament and of the Council of 23 October 2019 on the persons who report breaches of Union  obliges EU Member States to implement the appropriate national legislation to protect whistleblowers from retaliation, such as dismissal, degradation or other forms of discrimination.

The term for implementing the directive passed on 17 December 2021, ivoking numer of questions about the effectiveness of the protection of whistleblowers’ rights in these countries, including Poland, which have neglected its legislative obligations. This raises a key question: can and how can whistleblowers defend their rights on the basis of the directive, even though it has not been fully implemented in the national legal order? The answer to this question is fundamental to understanding current legal situation of whistleblowers in Europe and  potential ways to protect their rights and interests in the lack of national regulations.

According to CJEU case law, directives are generally not directly applicable to legal persons, because they are addressed to Member States, which are obliged to transpose their provisons into national law. However, in exceptional situations, if directive is enough precise and unconditional and Member State did not transpose it in the prescribed period, indywiduals can refer to such provisions directly before national courts. Reffering to UE directives in situations when they have not yet been fully implemented into a Member State’s legal order is a significant aspect of EU law. The principle of direct applicability of directives, although not absolute, opens up possibilities for individuals and national courts to refer to Union rules to protect rights guaranteed by Union law.

As mentioned above, in order for a directive to be directly applicable, it must fulfil certain requirements:

– Precision and unconditionality. Provisons of the directive must be sufficiently clear, precise and unconditional to allow their direct application.

– Not – implementation or incorrect implementation. Direct application of the directive only occurs in cases where the directive has not been implemented or has been implemented incorrectly by the Member State in the prescribed period.

– Provisons of the directive give rights to indywiduals in relation to the State (vertically). The directive provides whistleblowers with certain raights, including the ability to make reports and protection from reteliation as a basic competences.

Refering to unimplemented directives can have significant implications for the protection of indywidual rights in Member States. It offers a protection mechanism when national legislation is in conflict with Union law or when there isn’t appropriate national legislation. Having regard to the principle of the primacy of EU law, national courts are obliged to apply EU law in the way that best achieves its aims, even at the expense of avoiding conflicting national provisions. Refering to UE directives despite their lack of implementation into the national legal order hightlights the dynamic nature of EU law and its complex relationship with legal systems of the Member States. This reflects efforts to provide effective protection to individuals, even in the face of delays or omissions by national governments.

The first court in Poland has already applied directive dispite its lack of implementation.

The judgment of the District Court in Toruń, with case number IV P 171/22 of 12 July 2023, seems to be an example of the application of the principle of direct application in practise.

In the mentioned judgement, the Court put forward the thesis that, despite the fact that the directly applicable provisions does not introduce an explicit prohibition on dismissing employees who report irregularities to their employer (so – called whistleblowers), such a prohibition de facto exists in the Polish legal system thanks to Directive No 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of EU law. The court pointed out that, although Poland had not implement the directive in prescribed period, persons reporting breaches after that date could refer to its provisions in certain situations. This is particulary the case with chapter VI of the directive, which sets out protective measures that can be directly applied, on condition that it is verified that cases reported by whistleblowers qualify in terms of the scope and subject matter of the protection offered by the directive.

Based on the principle of direct application of UE directives, the District Court held that whistleblower protection could be granted on the basis of directive itself. This way, despite the lack of formal transposition of the directive into national law, Court emphasised that European provisions can be directly applied due to protect whistleblowers, highlighting fundamental role of the directive in promoting transparency and integrity in public and economic life.

The aim of directive is to protect whistleblowers in a professional contex, in both the private and public sectors. Based on his professional experience, this employee noted some breaches related to public health, data protection and IT systems security. In particular, the case concerned unequal and degrading treatment of students, as well as the lack of respect for rules and regulations by some employees of the university faculty in which the Notifier worked.

What events led the Court to apply the provisions of the directive directly?

The centre of interest was the situation of the teaching staff member , who repeatedly drew the attention of his superiors to irregularities in the concuct of examinations by one of the academic teachers. In response to his efforts, instead of investigating the case into and solving reported issues, the university decided to dismiss the notifer, arguing that it violeted the rules of social coexistence and caused conflict situations. The Court before which the case was brought was asked to assess whether, in the absence of direct national provisions transposing the whistleblower directive, legal protection could be afforded to a person who undertook to report irregularities. A key aspect in this judgement was to consider whether the directive could be directly applicable in a situation where a Member State had not implemented its provisons in the prescribed period.

The problem escalated to an appeal that the employee sent out on 5 February 2022, which specifically focused on issues protected by the directive, including public health and data protection breaches, in response to some decisions made at the university where he worked, in the context of the pandemic. This employee expressed concerns that the university is not properly reporting about COVID – 19 cases and is using software that he believes infringes on students’ privacy when they participate in the exam.

According to the directive, the protection of such reports does not depend on whether the information is ultimately confirmed as true, but on the good faith of the reporter. It is crucial that the person has a reasonable belief that the reported information is true. In this case, the employee’s determination and technical arguments he presented showed that he had a strong conviction in his claims, making his apeal worthy of consideration in the view of the mentioned directive.

Can I refer to the directive in my case?

In the example mentioned, the Court considered that the directive was sufficiently precise and unconditional with reference to specific rights and obligations, and decided to apply it directly to protect the whistleblower. This means that the Court despite the lack of implementation of the directive by the Polish government, considered the rights based on the directive to be directly applicable and granted protection to the whistleblower on the basis of the directive.

It is worth remembering, that such cases are quite rare and depend on the specific circumstances of the case, including the interpretation of the directive’s provisions by the Court. Furthermore, the direct application of directives by national courts does not substitute for the need for their transposition into the legal order of a Member State by its legislative authorities.

This decision sets an important precedent for the legal protection of whistleblowers in Poland, emphasising that, the a Member State’s lack of action in implementing the directive does not exclude possibility of defending whistleblowers’ rights. This judgment highlights the need to actively seek effective protection for those who choose to risk disclosing irregularities and is a reminder of the obligations arising from membership of the European Union and from the rule of law.

What about the Polish law?

On 8 January, the final project of the whistleblower protection law was submitted to the Parliament. This initiative is designed to implement a Directive (EU) of the European Parliament and of the Council No 2019/1937 of 23 October 2019. As the period for the harmonisation of Polish law with the requirements of the European Union ended more than 2 years ego – on 17 December 2021, the Ministry of Family, Labour and Social Policy Republic, which is the author of project, has requested its rapid consideration. This project is currently at the consultation and agreement stage. If the legislative prcess is realised quickly, perhaps the problem discussed in this article will become outdated. However, for today, it is still very up-to-date, not to say urgent.