HR Signal: Consequences of late Directive implementation

The deadline is approaching quickly, and we still do not have the second draft of the polish bill on protecting whistleblowers. It is unknow, how experts will react to the second version  and how long will it take to go through all of the stages of legislative process. Fears, that Poland will not manage to implement the relevant solutions before December 17, are becoming more and more justified.

A question arises – what will the lack of timely implementation of the Directive mean for employees and employers, and whether in such a situation it will be possible to apply the Directive directly?

Direct application of the EU directives is complicated and ambiguous. As a rule, EU regulations are directly applicable – such as the GDPR, the provisions of which can be invoked by every citizen of the member countries, regardless of the existence of relevant provisions of national law.

However, in certain specific circumstances, directives can also have direct effect. They  can be found in the well-established EU judicature, which lists, among others:

• the clarity, precision and unconditional provisions of the directive;
• lack of implementation of the directive;
• lack of time for implementation.

In many places, the Directive requires to specify certain issues accordingly with the national law, but in our opinion, an interpretation assuming that the above conditions are met cannot be fully ruled out. Some could claim that the Directive will be directly applicable after December 17, 2021.

The direct application of the Directive can only be vertical. This means that individuals can rely on the European standard in relation to the country, but not each other. It is not possible for the state to enforce the Directive against individuals.

The above allows to assume that if a person reported a violation after December 17, then, relying on the provisions of the Directive, they would theoretically have a chance to obtain the status of a whistleblower and the related rights. The list of issues in this situation form the employer’s perspective seems to be infinite. The boundary between the whistleblower vs state and the whistleblower vs employer relationship will be difficult to define. Thus, employers may, to some extent, feel the negative effects of the passivity of authorities.

We recommend not to wait until the adoption of the Polish act with implementing regulations of internal reports of violations. Only immediate action could allow for adequate protection of the employer and significantly reduce the risks associated with the upcoming uncertainties.

Additional argument for of the urgency of the need to introduce relevant regulations is that their entry into force will take place 2 weeks from the date of communicating it to employees, in the manner adopted in the workplace. In order to be fully compliant with the act, it must be done on the day of its publication at the latest. Rules for internal violations reporting should be prepared in advance.