European Parliament

The EU’s Whistleblowing Directive


On November 26, Directive (EU) 2019/1937 of the European Parliament (EP) and of the Council of October 23 (the “Directive“) on the protection of persons who report breaches of Union law was published in the Official Journal.


In light of recent information scandals including Cambridge Analytica, the Panama Papers and Luxleaks, the European Commission (EC) sought to introduce a unified measure granting protection to persons who report breaches of Union Law. These scandals have highlighted how crucial whislteblowers can be in uncovering unlawful activities, and the European Union (EU) has introduced the Directive to strengthen the enforcement of Union law and protect the freedom of expression of the whistleblower when interviewed on this topic, as explained by Maria Mollica, the EU Commission’s Policy Officer. While various Member States have addressed whistleblower protection in their own national legislation, the protection is often restricted to specific areas and thus the Directive attempts to unify and harmonize the approach taken by all Member States.

The Directive

Protection is afforded to whistleblowers to the extent they fall within the definition of “reporting person,” a natural person who reports or publicly discloses information on breaches acquired in the context of his or her work-related activities (Article 5(7)). In turn, this disclosure extents to information “including reasonable suspicions, about actual or potential breaches, which occurred or are very likely to occur in the organization in which the reporting person works or has worked or in another organization with which the reporting person is or was in contact through his or her work, and about attempts to conceal such breaches.” “Breaches” refers to any act or omission that is unlawful and relate to the Union or defeat the object or purpose of the rules in the Union (Article 5(1) and (2)).

It applies to businesses which employ at least 50 employees and they are required to implement internal channels to facilitate the reporting.

In terms of its scope, the Council of the European Union (EUCO) explains in a press release that “the new rules will cover areas such as public procurement, financial services, prevention of money laundering, public health, etc. For legal certainty, a list of all EU legislative instruments covered is included in an annex to the directive.” Further, regarding the protection awarded to reporting persons, it is stated that “the rules introduces safeguards to protect whistle-blowers from retaliation, such as being suspended, demoted and intimidated. Those assisting whistle-blowers, such as colleagues and relatives, are also protected. The directive also includes a list of support measures which will be put in place for whistleblowers.”

Next Steps

On November 26, the directive was published in the Official Journal and it will enter into force on December 16. Member States then have two years from that date to implement its terms and transpose its requirements into national legislation. Press Release. Legislative Text.

European Parliament Adopts Proposed Regulation Amending Regulation on Cross-Border Payments


On February 14, the European Parliament published a press release announcing it had adopted in plenary at first reading the proposed Regulation amending the Regulation on cross-border payments (924/2009regarding certain charges on cross-border payments in the EU and currency conversion charges (20189/0076/(COD)). On the same day the provisional edition ((P8_TA-PROV(2019)0124) of the text of the legislative resolution was also published.

The next step is for the proposed Regulation to be adopted by the Council, after which it will enter force 20 days after its publication in the Official Journal (“OJ“) and the majority of provisions will apply from December 15.

An FAQs and factsheet have also been published in relation to the proposed Regulation.

European Parliament Publishes Erratum to ECON Report on Proposed Regulation on Facilitating Cross-Border Distribution of Collective Investment Funds


On January 22, the European Parliament published an erratum (A8-0431/2018/err01) to a report of its Economic and Monetary Affairs Committee (“ECON“) on the proposal for a Regulation on facilitating cross-border distribution of collective investment funds (2018/0045(COD)).

It amends Recital 6 and Article 10, as well as inserting new Recitals 7a, 7b and 7c. It explains that these amendments were adopted by ECON but were missing from the text sent for translation. It should be noted that the changes affect all language versions of the report.

The erratum can be found here.

European Parliament to Consider Proposed Regulation and Directive on Cross-Border Distribution of Collective Investment Funds


On January 24, the European Parliament updated the following procedure files:

  • The procedure file for the proposal for a Directive on the cross-border distribution of collective investment funds (2018/0041(COD)).
  • The procedure file for the proposal for a Regulation on facilitating cross-border distribution of collective investment funds (2018/0045(COD)).

The updated procedure files specify that the Parliament may consider the proposals at its plenary session between April 15-18.

The Parliament’s Economic and Monetary Affairs Committee (“ECON“) voted to adopt draft reports on the proposals on December 4, 2018. It subsequently published the reports on December 7, 2018.

The proposed Regulation envisages a harmonized framework regarding features of the cross-border distribution of funds, in respect of marketing communications and member states’ marketing requirements. The proposed Directive contains alterations to the UCITS Directive (2009/65/EC) and the Alternative Investment Fund Managers Directive (2011/61/EU) (“AIFMD“) relating to pre-marketing and the discontinuation of marketing among other things.

The procedures files can be found here and here. The UCITS Directive can found here and the AIFMD can be found here.

ECA Publishes a Communication on Access to ECB Banking Supervision Documents and Information


On January 14, the European Court of Auditors (“ECA“) published a communication to the European Parliament on the European Central Bank’s (“ECB“) position on the ECA’s access to audit documents and information relating to its banking supervision role under the single supervisory mechanism (“SSM“). READ MORE

Draft Text of European Parliament Legislative Decision on the MLD5


The European Parliament published the provisional edition of the Fifth Money Laundering Directive (“MLD5“) on April 19, 2018 which it decided to adopt in full on the same day.

The Parliament has asked the European Commission to inform it if it replaces or substantially amends the proposal. It has also instructed the President to inform its position to the Council of the EU, the Commission and National Parliaments.

The next step is for the Council to formally adopt the proposed MLD5. When this happens it will enter into force 20 days after being published in the Office Journal of the EU (“OJ“). The draft text currently sets out that member states must enshrine the provisions of MLD5 into their national law 10 months after the date on which it enters into force.

Capital Markets Union: Council Formally Adopts Securitization Regulation and CRR Amendment Regulation


The General Affairs Council formally adopted at first reading the European Commission proposal for a Regulation of the European Parliament (“EP“) and of the Council amending Regulation (EU) 575/2013 on prudential requirements for credit institutions and investment firms (CRR Amendment Regulation) and a proposal by the Commission for a Regulation of the EP and of the Council laying down common rules on securitization and creating a European framework for simple, transparent and standardized securitization (Securitization Regulation) on November 20, 2017.

Both Regulations were adopted as an A item, meaning that they could be formally adopted without requiring a debate. This was expected, taking into consideration the undertaking given by the Council representative by letter of June 28, 2017 to approve the EP’s first reading position on both draft Regulations without further amendments. The EP formally adopted the two Regulations on October 26, 2017.

The new rules laid down in these two Regulations are part of the EU’s plan to develop a fully functioning Capital Markets Union by the end of 2019. The EU believes developing a securitization market will help create new investment possibilities and provide an additional source of finance, particularly for SMEs and start-ups.

The Commission adopted its proposals for these two Regulations on September 30, 2015.

European Commission Outlines Work Program for 2018


The European Commission published a communication on October 24, 2017, which outlined its work program for 2018. The communication included numerous annexes and outlined a number of initiatives which are intended to be the focus of the European Commission for the coming year.

The communication goes into further detail in a number of annexes that, for example, set out 10 political priorities, including the completion of the capital markets union and the banking union, as well as create a permanent and accountable European Minister of Economy and Finance.

The annexes also set out priority-pending proposals on which the European Commission wants the European Parliament and Council of the EU to prioritize while also listing a number of proposals which it intends to withdraw and legislation it intends to repeal.

The communication, addressed to the European Parliament, the Council of the EU, the European Economic and Social Committee and the Committee of the Regions, is available here.

European Parliament to Consider Report on Retail Financial Services


The European Parliament procedure file indicates that the report outlining the European Commission’s action plan on retail financial services will be considered in mid-November.

The action plan, published in March 2017, forms part of the European Commission’s goal of establishing a capital markets union. It aims to increase consumer trust, empower consumers and reduce legal and regulatory obstacles, whilst supporting innovation in the industry.

Following publication of the action plan, the European Parliament’s Committee on Economic and Monetary Affairs published a draft report on the action plan which contained a motion for a Parliament resolution. The draft report is available here; however, the final version, which will be discussed in Parliament, has not yet been published.

Mitigating Risks Associated with SFTs: European Commission Publishes Report

The European Commission has published a report to both the European Parliament and the Council of the EU under Article 29(3) of the Regulation on reporting and transparency of securities financing transactions ((EU) 2015/2365), (the “SFTR“).

Pursuant to Article 29(3) of the SFTR, the Commission is required to report on progress in international efforts to mitigate the risks linked with securities financing transactions.

The report provides a brief assessment of European securities financing transaction markets as well as discusses the Financial Stabilities Board’s (the “FSB“) recommendations aimed at mitigating securities financing transaction risks.

The report concludes that the FSB’s recommendations have been addressed in the EU through specific provisions within various financial services legislation and guidelines and the adoption of the SFTR.

To view the report, click here.