Protecting Whistleblowers in Poland: A Struggle for Implementation

On 23rd of October 2019 the European Parliament and the Council passed the Directive on the protection of persons who report breaches of Union law (“Directive”). The Directive aims to safeguard individuals known as "whistleblowers." Whistleblowers are persons who disclose information acquired in a work-related setting about violations of EU law in crucial policy domains. These violations encompass both illegal actions or oversights and the use of unfair practices. The Directive aims to encourage transparency and accountability by providing legal safeguards for whistleblowers.

The EU’s Member States were supposed to enforce laws, regulations and administrative provisions necessary to comply with the Directive by the 17th of December 2021.

As of January 25th 2024 Poland and Estonia have not yet implemented the Directive into their national legal systems.

Delay in transposition

The process of transposing the Directive on the protection of whistleblowers began in Poland in December 2020 but has encountered delays. Despite the publication of several versions of a draft bill addressing whistleblower protection, none have been officially submitted to the Parliament. Due to the recent parliamentary election in October 2023, any further work on those drafts have been discontinued. The transposition of the now rests upon a newly chosen government.

The biggest issues arising from the lack of implementation include:

• Inadequate Legal Protection - Poland lacks dedicated and comprehensive regulations safeguarding whistleblowers. In cases of retaliation, reliance on labor law provisions is deemed ineffective for protecting whistleblowers.
• Limited Worker Protection - The existing labor law in Poland does not cover millions of workers in non-traditional employment relationships, leaving them susceptible to retaliation for whistleblowing.
• Restricted Judicial Jurisdiction - Polish courts can only investigate reasons provided by employers for termination, making it difficult to establish whistleblowing as the actual cause of retaliatory actions.
• Ineffective Equal Treatment Provisions - Current provisions on equal treatment and harassment fall short in protecting whistleblowers due to the challenging nature of proving discrimination.

?Direct effect of the Directive

A recent case in Poland illustrates that, despite the absence of national transposition, the whistleblower protection rules outlined in the Directive can have a "direct effect" and be invoked by citizens seeking to exercise their rights under EU law against public entities. The ruling made by the District Court in Toruń on 12th of July 2023 exemplifies the application of the Directive's provisions through the declaration of its direct effect.

The case involves an employee of Nicolaus Copernicus University in Toruń who raised concerns about conducting exams during the peak of COVID-19 and personal data protection breaches due to the use of spyware during tests. After reporting concerns internally and then publicly on Facebook, when not resolved, the whistleblower was terminated, ostensibly for creating "conflict situations" and "failing to perform employee duties." The court rejected the stated reasons for dismissal and determined that the main reason was the reporting person's disclosure on social media.

Considering the University as a public entity performing public tasks, the court, following the principle of Direct Effect by the European Court of Justice, allowed the claimant to rely on the Directive's provisions prohibiting retaliation. The court found that the reporting person met all the criteria for protection outlined in the Directive and, as a result, enjoyed protection under Article 21 (1), (2), and (5). The court held that the defendant breached the prohibition against retaliation (Article 19(a)), and the whistleblower was entitled to compensation under Article 23 of the Directive. Though the judgment is not final, being a first-instance hearing, it sets a precedent for potential future cases.

What’s next for whistleblowers in Poland?

The new Minister of Labor, Family and Social Policy has announced that implementation of the Directive will be one of the priorities of the new ministry. On 11th of January a new draft of the bill was published on the website of the Government Legislative Center. The Ministry requested that it be urgently considered by the Standing Committee of the Council of Ministers using a separate procedure. This means that the draft would be considered without the stage of arrangements, opinions, public consultations, but also without the position of the Committee for European Affairs. Such actions aim to accelerate the legislative process.

The draft bill stipulates that the law will enter into force 1 month after the date of promulgation.

One cannot predict when the implementation bill is passed and comes into force, however it can expected to happen sooner rather than later.

Despite the lack of a Polish bill, we are observing increased activity in the market in implementing solutions regarding whistleblowers based on the provisions of the Directive. In our opinion, this follows, firstly, from the desire to maintain high standards of company operations (as an element of compliance policies) or, secondly, from the expectations of contractors or auditors.

As for now the companies from the private sector, which are obligated to introduce means of internal reporting, should prepare themselves and implement necessary internal regulations or at least have drafts of those regulations ready in order to adjust them to the final version of the implementing bill.

Should you have any questions regarding whistleblower protection in Poland, do not hesitate to reach out to Babiaczyk Skrocki i Wspólnicy !