Whistleblowers play a fundamental role in the fight against corruption. Hence, they need proper protection and encouragement. Anti-corruption mechanisms that target breaches of law, fraudulent activities, unexplained wealth, etc. cannot be effective if they do not consider the protection of people who denounce these issues. Exposing instances of corruption from the bottom-up in both the private and the public sector is a necessary practice in order to shed light on systemic malfunctions that erode democracy and citizens’ wellbeing. Thus, anti-corruption policies should be designed using and promoting the practice of blowing the whistle. The EU Whistleblowing Directive is a serious attempt to institutionalize the protection of whistleblowers within Europe, which could have an important impact in terms of preventing financial fraud. However, the EU’s impetus is not enough for the creation and implementation of effective whistleblower protection regulations. Political will on a national level is also of utmost importance in order to override private interests in policy-making and to create a comprehensive legal framework capable of achieving tangible results.
The EU Whistleblowing Directive introduces minimum standards for the protection of whistleblowers focused on the creation of effective, legally protected channels for information handling. The Directive requires many public and private entities to introduce their own internal channels via which potential whistleblowers can report. The Directive also appeals for the establishment of a comprehensive regulatory framework for external and public channels. It is recommendable that all three types of channels (internal, external and the mechanisms for public disclosure) are interrelated and interactive. Only Denmark and Sweden have transposed the Whistleblowing Directive by November 2021. The deadline for implementation into the national legislations of EU Member States is 17 December 2021.
Although most EU Member States have not yet transposed the law into their national jurisdictions, many of them have preexisting legal provisions on the issue scattered across a range of legal acts. One of the EU Member States with existing legislation providing good whistleblowing protection practices is Croatia. According to the Croatian Whistleblower Act which came into force in 2019, after an internal investigation is carried out in response to a whistleblowing signal, the ombudsman may conduct a second external inspection, particularly when requested by the signal provider. In order to ensure the effective impact of whistleblowing, it is crucial that the bodies involved in the response to signals are independent, both in their formation, and from each other. For the time being, despite Croatia having a whistleblowing-specific law, it does not include all standards established by the EU Directive. Another interesting example is from Latvia’s draft whistleblowing bill, which includes provisions for climate violations through the inclusion of threats to environmental safety in the list of offences.
In Bulgaria provisions on whistleblower protection exist but are scattered across different legal acts. As a result, there is no systematic and coordinated mechanism for whistleblower protection in the country. The identity of signal providers can easily be disclosed and they are therefore vulnerable to all the associated risks. Moreover, not enough support measures are offered. Provisions relating to the reporting of alleged crimes and corruption contained in the Administrative Procedure Code provide some general protection for whistleblowers against possible acts of repression. The Conflict of Interest Act and the Public Administration Act contain provisions which allow those with information regarding rule violations by those in public office to report an alleged conflict of interest. They also prohibit the disclosure of the identity of the whistleblower, or the facts and data relating to the signal, although anonymous signals are not allowed. Similarly, the Anti-Corruption and Illegal Assets Forfeiture Act adopted in 2018, which establishes the Commission for Anti-Corruption and Illegal Assets Forfeiture as the central body designated to receive signal for corruption, also prohibits anonymous signals.
As a member of the European Union, Bulgaria committed to transpose the EU Directive on whistleblower protection in 2019 and to implement it into national legislation. At the beginning of the COVID-19 pandemic in March 2020 a working group, gathering together representatives of the state institutions, experts, civil society organizations and businesses, was established to create a draft law for a national comprehensive whistleblower protection legislation. The Center for the Study of Democracy is also a member of the working group at the Ministry of Justice. Yet, the working group has not yet concluded its work, and due to a lack of a regular parliament and political majority after April 2021 and early December 2021, Bulgaria will miss the EU deadline for transposing the directive.
Effective anti-corruption mechanisms cannot be enforced without supporting and protecting whistleblowers. Yet establishing and implementing such a legal framework is highly technical, and so the next Bulgarian parliament needs to show greater political will to establish it and enforce it in such a way that significant results can be achieved. This should be a first priority for the permanent Parliamentary anticorruption commission when its planned reestablishment takes place.