We are empowering whistleblowers yet again | Edward Zammit Lewis

Malta is one of nine European Union (EU) member states with a pre-existing holistic legal framework which offered legal protection to any whistleblower.

In September 2013, the Maltese government prolongated the Protection of the Whistleblower Act, which consisted of procedures that provide protection to persons who report improper practices and wrongdoings in both the private and the public workplace.

For many years, corporate whistleblowers who attempted to report wrongdoings at their place of work were unrepresented and unprotected. With the introduction of the EU 2019 Whistleblower Directive, the EU introduced ground-breaking mechanisms to address any lacunas and implement an effective procedure to detect misconduct, fraud, bribery, and corruption, as well as preventing commercial crime.

What is the EU’s Whistleblower Directive?

The EU passed new whistleblower protection regulations for the whole Union and each member state is now passing its own adaptation into national legislation to promote the protection of whistleblowers.

Directive 2019/1937 also extends to those who facilitate the report and other connected persons who may suffer retaliation in a work-related context. According to the directive, enterprises with 50 or more workers in the EU must establish internal reporting mechanisms to assist employees and other third parties when reporting violations of EU law and to safeguard those individuals from reprisal when they do speak up.

Consequently, member states were required to incorporate all the whistleblower safeguards outlined in the EU regulation and add further mechanism if a country so desires to do so.

What are the new amendments?

In light of the EU mechanisms, Malta is implementing through this Bill a number of amendments in Chapter 527. The amendments followed the Directive’s suggestions and create an improved legislative framework to protect whistleblower and any reports regarding breaches or abuses of EU law, in particular, the issues involving breaches in transportation, safety, public health, consumer protection, environmental protection, financial services and the prevention of money laundering and terrorist financing.

Furthermore, the new Bill also includes crimes against EU financial interest and any breach of internal market regulations.

Protected types of whistleblowers

The new EU Directive established a list of whistleblowers in both the private or public sector, who are protected if they acquired and forward information on breaches in a work-related context.

These include workers, the self-employed, service-providers (including freelancers, contractors, subcontractors and suppliers), shareholder and members of the management, volunteers and un/paid trainees, job and persons whose employment relationship has ended or has yet to begin.

Thus, to ensure that even individuals with these roles are able to attain whistleblower status through our national law, the term shareholder under the definition of “employee” has been added in Chapter 527.

Internal and external disclosure

With the new amendments, particularly an internal disclosure (within the employee’s organisation) as well as an external disclosure (to the external reporting office), an employee can make a public disclosure if no appropriate action was taken in response to the report within the relevant timeframes or if the person has reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public interest.

A public disclosure may also be made if there is a risk of retaliation or there is a low prospect of the breach being effectively addressed, in the case of external reporting.

A Labour electoral pledge

After the Nationalist Party failed to fulfil yet another 2008 electoral promise – introduction of Whistleblower’s Act. This was introduced by a Labour government shortly after being elected to power in 2013 to provide protection to those who report improper practices and wrongdoings.

A few years down the line, the Robert Abela administration committed itself to further strengthen these legislative measures by establishing new reforms which address both the national and the Union’s interests in terms of whistleblower protection.

These reforms portray the government’s commitment to put every workforce associate’s mind at ease vis-à-vis any unlawful practices, abusive mechanisms and any exercises that violate the EU’s regulations at work.

It is the Abela administration that has presented truthful mechanisms in Parliament and once again concretely fortified our rule of law and good governance.

Edward Zammit Lewis is minister for justice