Whistleblowing: procedural and dogmatic problems in the implementation of directive (EU) 2019/1937
| DOI | https://doi.org/10.1108/JFRC-12-2021-0118 |
| Published date | 11 April 2022 |
| Date | 11 April 2022 |
| Pages | 553-566 |
| Subject Matter | Accounting & finance,Financial risk/company failure,Financial compliance/regulation |
| Author | Fabian Maximilian Teichmann,Chiara Wittmann |
Whistleblowing: procedural and
dogmatic problems in the
implementation of directive (EU)
2019/1937
Fabian Maximilian Teichmann and Chiara Wittmann
Department of, Teichmann International (Schweiz) AG, St. Gallen, Switzerland
Abstract
Purpose –This paper aims to enlighten theshortcomings of the EU Whistleblowing Directive 2019/1973,
which could interfere negativelywith its successful national implementation. In focus is the tensionbetween
companies potentially attempting to hide misconduct and disgruntled employees taking advantage of
generousprotection under the directive.
Design/methodology/approach –With an extensive literary basis, this paperexplores articles of the
EU Whistleblowing Directive2019/1973 under five areas of the so-called “weakness.”Withview to Germany
and Austria, the difficultyof implementing the directive is highlighted and likewise with view to Switzerland,
a potentialsolution is presented.
Findings –The Whistleblowing Directive 2019/1973 overshoots its target by protecting whistleblowers
without considering the widerpublic interest. There are specific points of arbitrary definition which demand
resolutionto ensure a successful national implementation.
Originality/value –This is a multifaceted discussion of a highly contentious ethicaldebate. Through an
explorationof specific points of the Directive, it is possible to present why thereare points of contention in the
first place,and also the difficulty of implementing the principle of proportionality.The issue at the heart of the
matter is balancing the protection of trade secrets with the fundamental necessity of whistleblowing as a
means of last resort.
Keywords Business ethics, Whistleblowing, EU 2019/1937, National law, Union law
Paper type Research paper
Introduction
Whistleblowers are definedbytheDirectivediscussedhereas“natural persons who
report or publicly disclose information on breaches acquired in the context of his or her
work-related activities”(Art. 5 Nr. 7). In contrast to informants, whose purpose is more
akin to that of a spy, there is often a personal element in the decision to reveal information
because of a conflicting feeling of duty or a sense of personal risk (Das and Aldrin, 2015).
The high-profile cases of Edward Snowden, Julian Assange and Chelsea Manning have
incited a multifaceted public discourse on personal versus business ethics and caused a
contentious discussion with a global stir (Scheuerman, 2014).Theseinfamousexamples
are also playing out against the backdrop of an increasingly restrictive corporate
criminal law, from which companies are trying to benefit. It is no secret that
whistleblowing mechanisms can be the means by which companies gain a competitive
advantage through the timely exposition of misconduct reports (Fritz, 2009). Determining
whether legislative recommendations are suitable is difficult because of the ethical
complexity of the situation, with both private and public interests playing their
determinative part.
Whistleblowing
553
Received29 December 2021
Revised11 February 2022
Accepted3 March 2022
Journalof Financial Regulation
andCompliance
Vol.30 No. 5, 2022
pp. 553-566
© Emerald Publishing Limited
1358-1988
DOI 10.1108/JFRC-12-2021-0118
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