On January 27, 2022, 24 member states were formally notified by the EU Commission for failing to adopt the Directive (EU) 2019/1937—the EU Whistleblower Protection Directive (Directive). Then, on February 9, 2022, Portugal and Sweden also received formal notice letters because of the delayed entry into force of the provisions incorporating the Directive into national law. The chaotic legislative landscape following the transposition deadline of December 17, 2021 can therefore be understood as follows:

One clear transposition champion

Malta is the lone EU member state that has not received a formal notification. It already adopted a whistleblowing law in 2013, which was amended at the end of last year to incorporate the provisions of the Directive into national law. The amendments officially entered into force on December 24, 2021. Although the introduction of the new rules was criticized for being rushed, Malta currently remains the only member state to have formally met the requirements set by the EU legislator.

Troubles despite adoption

Apart from Malta, seven other countries have already adopted the provisions of the Directive: Cyprus, Denmark, France, Latvia, Lithuania, Portugal and Sweden. That said, the EU Commission seems to be dissatisfied with the dates of entry into force as well as the extent to which the Directive has been transposed. Denmark, for instance, has been criticized for allowing shared internal reporting channels for legal entities with 250 workers or more and thus for not fully implementing the EU provisions, which allows sharing channels for entities with up to 249 workers. On the other hand, according to the EU Commission, member states like Portugal and Sweden breached EU law because they postponed the application of their national provisions incorporating the Directive until after the transposition deadline.

Upcoming introduction of new rules in several countries

It appears that only a few EU member states will introduce changes to their existing laws in the course of the next several months:

• Finland expects implementation of the Directive by the end of March 2022.
• The Luxembourg government published a draft bill on January 12, 2022, which is expected to be implemented later this year.
• Slovakia had already proposed amendments to its Whistleblower Act. The changes, which would provide for transposition of the Directive into national law, are currently expected to enter into force on May 1, 2022.

Discussions still ongoing in multiple member states

Several member states, however, have not met the deadline because of a changing political situation or due to heated discussions over the standards that should be met under national law:

• The political landscape remains the main transposition hurdle in Germany, the Czech Republic and Bulgaria. These countries all held federal elections between September and November 2021, and thus it was unrealistic that the newly convened parliaments would be able to adopt the EU rules by December 17, 2021.
• In the vast majority of EU member states, debates surrounding the scope of the measures, as well, the exact phrasing of the national provisions persist. It is therefore not certain whether and when those countries will implement or publish a (draft) bill transposing the Directive in the near future.
• In some countries, discussions appear to have not even begun. For example, the Hungarian government has remained silent regarding the Directive’s implementation status since its promulgation in October 2019. Hence, adoption of the EU rules in the near term seems questionable.

404 Error—harmonization not found

Intense debate over the subject-matter is no surprise. It is reminiscent of the discussion, at both the EU level and among member states, on the scope of the exceptions to the protection of trade secrets under Directive (EU) 2016/942 of the European Parliament and of the Council of June 8, 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. Revealing misconduct, wrongdoing or illegal activity (or whistleblowing) is among those exceptions, and it affects not only the protection of trade secrets. Aligning conflicting interests is always a challenge. While the delay is unfortunate, it is acceptable if it eventually leads to balanced national legislation.