Mirjana Martić, PhD
Judge and Head of Enforcement Department, Belgrade Misdemeanor Court, Belgrade, Serbia

The EU Whistleblowing Directive is the first binding European instrument that explicitly recognizes the protection of whistleblowers as a necessary mechanism to improve the application of EU law. Strong whistleblower`s protection is seen as one of the preconditions for the rule of law especially in the context of the fight against corruption, free media reporting, and freedom of expression in democratic societies. The term whistleblower is generally understood as a person who has disclosed information about a threat to or violation of the public interest. The determination of the public interest traditionally belongs to the domain of state sovereignty. Even before the adoption of this Directive, “acting in the public interest” was the main criterion for the protection of whistleblowers in many European instruments, such as the Council of Europe Resolutions 1729(2010), 2060(2015), 2171(2017) and especially the Recommendation 7 (2014) which even states that it is up to each member state to determine which information is in the public interest and to which disclosure should be given special protection. However, categories such as national public interest, higher national interest, and the like often depend on the structures of powers that be and daily political events. A striking example of this situation is the “Luxleak” case, in which, in the midst of the criminal prosecution of the whistleblower Antoine Deltour in Luxembourg, the EU awarded him the “European Citizens’ Prize” award because of the same whistleblowing acts that led to criminal proceedings in his country. To overcome such obstacles, the author argues that the Whistleblowing Directive introduces the concept of whistleblowers as protectors of community public interest by setting common minimum standards for material scope of what information should be considered in the national public interest to enhance the rule of law both at the national and EU level. Thus, in the event of a conflict between the national public interest of a Member State and the community public interest of the EU, the judicial authorities will be obliged to protect the latter as the predominant one.

Keywords: whistleblowing, EU Directive 2019/1937, public interest, rule of law, supremacy.

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