Against the backdrop of the many significant and at times highly controversial changes being made to Polish law at the moment, the country is close to enacting its first ever serious whistleblower protection laws. What will this protection look like, and what does its passage mean for Poland?
The European Background
The European Commission defines whistle-blowers as “persons who report (within the organization concerned or to an outside authority) or disclose (to the public) information on a wrongdoing obtained in a work-related context, help prevent damage and detect threat or harm to the public interest that may otherwise remain hidden.” According to the Commission, because “they are often discouraged from reporting their concerns for fear of retaliation … the importance of providing effective whistle-blower protection for safeguarding the public interest is increasingly acknowledged both at the European and international level.”
The fear of negative repercussions is not simply theoretical. According to the 2017 Special Eurobarometer 470 Report on Corruption that was requested by the European Commission, Directorate-General for Migration and Home Affairs and coordinated by the Directorate-General for Communication, 81% of European respondents indicated they would not report corruption they experienced or witnessed due to the potential risk of reprisal.
Accordingly, and following the recent and highly-publicized Dieselgate, Luxleaks, Panama Papers, and Cambridge Analytica scandals, on April 23, 2018, the European Commission issued a proposal for a new Directive on the Protection of Persons Reporting on Breaches of Union Law, which would establish a comprehensive legal framework for whistle-blower protection.
In the meantime, however, and until that framework is officially enacted, the protection of whistle-blowers on a national level in Europe is uneven. Indeed, only ten EU countries – France, Hungary, Ireland, Italy, Lithuania, Malta, Netherlands, Slovakia, Sweden, and the United Kingdom – ensure the full protection of whistle-blowers, with the rest granting only partial protection, usually only in particular sectors such as financial services, transport safety, and environmental protection.
Poland is one of these countries.
The Unsatisfactory Current Situation
Currently, provisions in Poland’s Labor Code, Criminal Code, and Code of Criminal Procedure loosely protect the right of whistle-blowers. Under the Polish Labor Code employees are protected from unfair dismissals, and the Code of Criminal Procedure requires witnesses to a crime to notify law enforcement authorities. Nevertheless, although complaints can be filed to the country’s Labor Inspectorate or Human Rights Ombudsman, ultimately Polish law provides little protection for the identity of whistle-blower, and – in the context of unfair dismissals – puts the burden of proof on them to prove that their dismissal was tied to their reporting.
In addition, the relevant provisions in the Labor Code and the Code of Criminal Procedure are subject to judicial interpretation, allowing each judge to interpret the rules differently. According to Transparency International’s 2013 Whistleblowing in Europe report, “since the [Polish] provisions are subject to judicial interpretation, it is difficult to predict how a particular judge will apply these general rules to a particular whistle-blower case. This adds yet more subjectivity into an already incomplete whistle-blower framework. Further, judges’ hands are tied by Supreme Court rulings that often do not allow the underlying reasons for an employee’s dismissal to be examined. This means that judges may not consider a whistle-blower’s public interest disclosure.”
And part of the problem may be an overall lack of governmental enthusiasm for pursuing corporate crime in the first place. According to Grzegorz Makowski, a Transparency International Partner in Poland and expert at the pro bono IdeaForum think tank of the George Soros-founded Stefan Batory Foundation, statistics on corporate liability law indicate that from 2006 to 2016 there were around 200 cases related to corruption, with only 60 convictions, leading generally to what Makowski calls “ridiculous” fines.
Ultimately, the current whistle-blower protection provisions in Poland are widely criticized as being ineffective and badly designed to tackle the real issues whistle-blowers face, even though Poland ratified the United Nations Convention against Corruption in September 15, 2006 and in November 22, 1996 ratified the Convention on the Organization for Economic Co-operation and Development. Whistle-blower rights are also potentially protected under Article 11 of the Charter of Fundamental Rights of the European Union and Article 10 of the European Convention on Human Rights. “The problem is real, because we are not complying with international standards,” Makowski says.
Thus, although according to Blueprint for Speech (an NGO that provides research and analysis in support of freedom of expression), public support for whistle-blowers is high, the level of protection they are afforded in Poland, currently, is not.
This may soon change.
Either/Or: Two Draft Laws Circulate in Parliament
In recent years, Poland has made several attempts to introduce provisions into legislation addressing whistle-blower protection. Two draft laws currently under consideration by the Polish Parliament reflect different strategies to do so.
The first of these, the Transparency in Public Life law, was drafted by the Polish intelligence agencies as a combination of four pieces of legislation (involving lobbying, access to public information, declaration of assets, and whistleblower protection), and includes a provision that guarantees protection against retaliatory actions, such as terminating employment contracts. Although it was initially expected to be enacted in February of this year, push-back has put it on hold for the moment.
The second draft law providing whistle-blower protection that is under consideration is the new draft Corporate Liability bill put forward by Poland’s Ministry of Justice in May of this year (with an updated version released in August).
Although both the draft Transparency in Public Life law and draft Corporate Liability law address the protection of whistle-blowers, they do so in different ways. The Transparency in Public Life law only applies to crimes involving bribery and/or tax evasion, and ensures protection only for those whistle-blowers whose status is officially acknowledged by a prosecutor. By contrast, the Corporate Liability law would protect whistle-blowers irrespective of public prosecutor involvement, and is not limited to specific offenses. Unlike the Transparency in Public Life law, it also requires that companies address any issues revealed by a whistleblower, with sanctions levied on those that fail to do so.
As both draft bills are still in process, it is not clear which law (if either) will be enacted first. “I can sense an internal competition between these two public officials,” CMS Partner Arkadiusz Korzeniewski says, referring to the sponsors – the Polish Intelligence Agencies and the Ministry of Justice – of both bills. “We will see who is going to win the struggle.”
Weighing the Pros and Cons
Many in the Polish legal community are concerned about the provision in the Transparency in Public Life law providing prosecutors with exclusive responsibility for determining who qualifies as a whistle-blower and who does not for purposes of obtaining the law’s protection. “The Transparency rules are very strange, to put it mildly,” Wolf Theiss Partner Jacek Michalski says. “It does not make any sense to define a whistle-blower only when a prosecutor accepts his or her arguments and information.”
In addition, the provisions in the Transparency in Public Life liaw limiting its applicability to specific criminal acts has also drawn some criticism. “The purpose of the whistle-blower provision is to provide tools to protect against offenses or wrongdoings within organizations,” Michalski says, “and these are not always necessarily connected to tax evasion or bribes. There might be other issues that a whistle-blower could report in a given form and format.”
But the Corporate Liability law, which grants power to the courts instead of the prosecutor to determine who is and who is not entitled to whistleblower protection, does not escape criticism either. The downside of the draft Corporate Liability law, Grzegorz Makowski claims, is the absence of any protection for whistleblowers who are still employed and seeking ways to use internal mechanisms to report irregularities without getting fired. Makowski says, “It seems they [the lawmakers] would like to create incentives for employees to report on their employers without offering them any protection.”
Baker McKenzie Partner Radoslaw Nozykowski is more optimistic. Speaking about both bills, he notes, “to a certain extent, it is a step in a good direction, because the previous law was not very effective, and certain changes were needed.” And he describes the draft Corporate Liability law in particular as “kind of an umbrella legislation, because it covers reporting on any kind of crime.” Still, Nozykowski says, “I do believe that this draft needs serious work. It is a good start, but it definitely needs to be drafted much more carefully.”
Ultimately, many believe that both of the attempts to address the issue are insufficient, and that a full and separate act is needed, providing real protection to whistle-blowers in all appropriate situations. To this end, Makowski reports, two years ago the Polish Ministry of Justice initiated consultation on the possibility of combining all whistle-blower protections into one act. The proposal received a positive response at the time, he says, but the idea was dropped at a later stage for undefined reasons. Subsequently, his organization – the Batory Foundation – working alongside Poland’s Labor Union and Trade Union, drafted a new law on whistle-blower protection at the end of 2017.
Although Makowski reports that the Batory Foundation’s umbrella proposal was supported by Poland’s Central Anticorruption Bureau, at the moment it appears the draft bill on Transparency in Public Life is receiving more support in the government. Makowski insists that he and his colleagues are not discouraged. “We think this is a window of opportunity. It will be difficult to ignore our proposed law totally,” he says, “and we will advocate for this bill until next year’s parliamentary election.”
CMS’s Arkadiusz Korzeniewski agrees that umbrella protection is needed, and that merely protecting whistle-blowers from having their employment terminated is not enough, as whistle-blowers to significant violations are rarely interested in continuing their employment with notorious employers anyway. “The current EU system leaves a lot of space for domestic legislation, and thus, when it comes to general principals, both [of Poland’s draft] laws are definitely steps in the right direction. But the mere fact that this person blew the whistle means his or her professional career is over, because this person will not be able to get any job in her or his profession, because no one wants to have a person like this. So no matter what is written in legislation prohibiting discrimination and retaliation, this will not be enough.”
Korzeniewski concedes that he is unimpressed with the current proposals circulating in the Polish parliament. “I doubt this very rudimentary measure of protection would be sufficient for making whistle-blowing a more effective measure of combating corruption fraud or other law violations done in companies.” Ultimately, he says with a sigh, some aspects of the problem may be beyond the reach of legislation anyway, making a full protection of whistle-blowers impossible.
Few would challenge the notion that protecting those who report on crime and ethical violations in the work-place deserve from retribution will encourage them to step forward, providing valuable assistance to authorities in their ongoing attempts to identify and prosecute bad actors. The best way to do so, however, remains a subject of great debate. Poland is attempting to solve this riddle.
This Article was originally published in Issue 5.9 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.