After the expiry of the two-year deadline, Hungary has still not started transposing the EU Whistleblower Protection Directive
The transposition deadline expired in December last year, but Hungary has so far failed to reach even the stage of a published draft law or public consultation. From public data it can only be found that the Ministry of Justice is supposedly working on the task – a ministry with firsthand experiences on the difficulties of preventing corruption in the Völner case.
“We reject unfounded and politically motivated concerns about Hungary’s anti-corruption policies, because in international comparison Hungary has an outstanding, detailed anti-corruption strategy, an effective whistleblower protection system and strict criminal law rules“, as Justice Minister Judit Varga wrote in August last year in response to the current “attacks from Brussels”. We quoted it as in the last three years this is the only sentence published on the government website about the regulation of whistleblower protection.
That there is still room for further development of anti-corruption policies “outstanding in international comparison” is perhaps best supported by the fact that, according to the suspicions of the prosecutor’s office, Pál Völner, Judit Varga’s former deputy, was able to commit corruption crimes for years without being detected or prevented by the Ministry of Justice. Furthermore, the level of national pride shown by the ministerial statement on an effective whistleblower protection system does not seem justified, because the Hungarian government is the only one in the European Union that has still not initiated any steps to adopt national legislation in accordance with the EU directive that significantly extends the protection of whistleblowers.
In autumn 2019, the Council of the European Union and the European Parliament adopted Directive 2019/1937/EU on the protection of persons who report breaches of Union law, which provides for European minimum conditions for the protection of whistleblowers who report breaches of EU law in a wide range of areas, from public procurement to road safety and the protection of public health. This protection requires, inter alia, penalties against employers or public bodies applying labor law and other retaliatory measures against the whistleblowers, sets out detailed procedures for transparent but protected handling of reports, and provides for support measures for whistleblowers such as free legal advice and legal remedies without procedural fees and charges.
As a general rule, the regulation provides for internal investigations of infringements, but municipalities with more than 10,000 inhabitants and businesses with more than 50 employees will have to establish ‘real and effective’ reporting channels, whereas Member States will have to operate ‘independent and autonomous’ external reporting channels.
In the case of Hungary, the transposition of the Whistleblower Protection Directive should mean a complete review of the existing whistleblower protection legislation based on Act CLXV of 2013 on Complaints and Public Interest Reports. Although the current law regulates all important regulatory areas of the directive (investigation, protection against retaliation, registration of notifications and the investigative powers currently held by the Commissioner for Fundamental Rights as an external investigative tool), the rules of the Directive are much more detailed and specific, so even with a minimalistic approach, a medium-sized amendment affecting dozens of provisions of the law is necessary.
Based on the Hungarian practice of harmonisation and the sensitivity of the topic, it was unlikely that the transposition would be quick, but the fact that it was completely left behind is still surprising.
The national legislation to be drafted in accordance with the Directive should apply from 17 December 2021. However, only seven Member States have transposed the Directive until now, meaning that the legislative process has been delayed in the majority of Member States, typically due to a dispute between supporters of ‘market-friendly’ minimum regulation and solutions that go beyond the Directive’s minimum.
At the same time, all the other Member States that are late are already in the public phase of preparations: in some cases the proposal is already before parliament (e.g. in Slovakia and the Netherlands), in some where only the draft legislation is being publicly consulted (e.g. in Poland, Spain and Slovenia), the Germans have even included the task in the newly formed government’s coalition agreement. Even in Greece, Italy and Austria, the countries that have not yet published the draft legislation, public consultations and debates have already taken place, and independent bodies have already discussed the transposition.
The Hungarian government has therefore been left alone in the EU by not wasting a word on this issue in public, despite all its stated commitment to effective anti-corruption measures. The fact that the government is working on the task at all, which is otherwise included in its own legal harmonisation database, was only to be found upon a reply sent in June last year to a freedom of information request, according to which the Ministry of Justice was at the time “preparing a proposal containing a bill implementing the transposition of the Directive”.
Of course, based on political logic, it is easy to understand if the government did not consider it wise to introduce a bill on this subject in the months leading up to the April parliamentary elections. However, this is certainly not due to the fact that the Hungarian corruption strategy is outstanding and the whistleblower protection system is already effective.
Written and translated by Tibor Sepsi, the Hungarian version of this article is available here.