When Security Overrides Transparency: The National Security Clause in Whistleblower Protection (Polish and EU Perspective)

PurposeTurkey is required by the international and EU instruments and domestic law to address the issue of whistle-blowing and the protection of whistle-blowers. The purpose of this paper is to analyse Turkish legislation which is applicable to work-related whistle-blowing, the conflict between the worker’s right to “blow the whistle” and the obligation to loyalty and confidentiality. The consequences of groundless or deliberate false disclosures are considered. Comparisons are made with international conventions, the COE Recommendation CM/Rec(2014)7 and the Proposed EU Directive on the Protection of Whistleblowers and ECtHR precedents.Design/methodology/approachIn the first part, this paper reviews the definition of whistle-blowing and whistle-blower. The second part outlines the impact of international and EU Law on Turkish legislation. The third part reviews the Turkish legal framework applicable to whistle-blowing.FindingsWhistle-blowing in the public interest is suggested as a tool to combat corruption worldwide. There is no doubt that some whistle-blowers have been beneficial to society. However without democratic structures to take into account the assessment of the quality of the information, the type of the disclosure and the category of the reporting person, there are downsides to excessive whistle-blowing. Therefore, whistle-blowing should be discussed in the context of democratic societies, and a balanced approach should be adopted to ensure the position of not only whistle-blowers but also the people affected by the reports.Originality/valueThe paper offers new insights into the limits of work-related whistle-blowing within the context of freedom of expression and the right of employees and public officials to petition. The protection of whistle-blowers and the consequences of groundless or deliberate false disclosures under Turkish Law from a comparative perspective are considered.

The chapter highlights the crucial role of whistleblowers in democratic societies, emphasizing their contribution to transparency and accountability in public and private institutions. It discusses the significance of directive (EU) 2019/1937 in creating a uniform framework for whistleblower protection in European Union Member States. The directive aims to encourage comprehensive and effective protection, covering issues beyond labor law. The chapter delves into challenges in implementing whistleblower protection, citing the importance of corporate social responsibility (CSR) and ethical conduct. It emphasizes the symbiotic relationship between whistleblower protection, CSR, and corporate ethics. The authors stress that while legislation is vital, an effective whistleblower protection system requires broader efforts, including corporate governance measures and fostering a positive attitude towards whistleblowing.

The American whistleblower protection scheme as applied to whistleblowers in the laboratory context is a complex patchwork of federal, state, and local laws. Substantial differences in whistleblower protection for laboratory employee whistleblowers depend on a number of factors, including whether the laboratory employee whistleblowers work for public or private institutions and the location of the whistleblower. This document provides a basic summary of the American whistleblower protection scheme applicable to workers employed in laboratories in the United States, with a focus on biological laboratories, and those working with select agents, which are highly infectious agents that warrant special regulations for public safety and national security reasons.

The Whistleblower Protection Act (WPA) of 1989 was enacted to provide protection to employees who report wrongdoing on the part of their employers. This study analyzed whether the provisions in the WPA actually protect federal government employees from retaliation by their federal government employers. The research focused on a legal analysis of federal employee WPA claims litigated in federal court. Furthermore, within those cases, the claims were separated by issues—national security, environmental issues, and government ethics—to get a fuller understanding of WPA issues. The findings of the analysis suggested that the WPA did not provide adequate protections for employees. Out of 151 appellate cases that were identified and reviewed in the study, 79% of cases were ruled in favor of defendants—federal agencies. Out of 142 cases involving government ethics and administration issues, 79% of cases were lost by employees. In issues involving the environment, 100% of cases resulted in a loss for employees. Out of four cases involving national security, 75% were lost by federal employees. The results lead to the conclusion that either the WPA as written or the manner in which courts are interpreting the WPA is not consistent with the intent of the legislation—to protect employees. The article further analyses the Whistleblower Protection Enhancement Act (WPEA) of 2012 and whether it cures the defects in the WPA. The analysis shows that the WPEA may not live up to its promise.

Purpose: Money laundering and fraud are pervasive financial crimes that pose significant threats to both economic stability and national security. This paper explores the multifaceted impacts of these crimes within the United States by assessing how illicit financial flows distort market operations, undermine public institutions, and enable criminal and terrorist networks. Methodology: Drawing upon qualitative data from scholarly research, government reports, and real-world case studies, the study illustrates how money laundering inflates asset prices, misallocates capital, and distorts investor risk perceptions thereby reducing economic efficiency and hindering long-term growth. Findings: Fraud, particularly corporate and cyber-enabled, is further shown to erode trust in financial institutions, increase compliance costs, and exacerbate social inequality. National security threats arise when laundered funds are used to finance organized crime, terrorism, and espionage. The growing role of digital currencies adds complexity by providing anonymity and bypassing traditional financial oversight. Unique Contribution to Theory, Policy and Practice: The paper offers a comprehensive analysis of current policy responses, identifies gaps in enforcement, and proposes targeted recommendations to strengthen regulatory frameworks and foster international cooperation. Innovative solutions such as blockchain analytics, AI-based detection tools, and whistleblower protections are highlighted as critical to curbing these crimes. The paper concludes that combating financial crimes requires a multidimensional strategy involving legal, technological, institutional, and cross-border collaboration. By addressing the root causes and systemic enablers of money laundering and fraud, the United States can enhance its financial integrity, safeguard national security, and promote sustainable economic growth.

The article examines the impact of Anglo-Saxon legal systems, primarily those of the United States and the United Kingdom, on the formation of the contemporary European model of whistleblower protection. The study takes into account both the historical development of legislation and the current trends of its reform in the USA, the UK, and the EU. It explores in detail the fundamental legislative acts of the American legal tradition – the False Claims Act (1863) and the Whistleblower Protection Act (1989) – which laid the foundations for two key components of the whistleblowing framework: financial incentives for individuals reporting misconduct and institutional safeguards protecting federal employees from retaliation. The significance of U.S. sectoral statutes (environmental, financial, labor) is also emphasized, as they specify guarantees in particular fields and serve as a practical complement to the general provisions. Special attention is devoted to the UK Public Interest Disclosure Act (1998), the first unified legislative act on whistleblowers in Europe. It introduced a multi-level system of reporting channels, the “public interest” criterion, and a balance between the protection of employees and the legitimate interests of employers. Special emphasis is placed on the category of “public interest,” which serves as a key criterion for distinguishing private grievances from socially significant disclosures. Based on case law analysis (Parkins v. Sodexo, Chesterton Global Ltd v. Nurmohamed), the article demonstrates how British courts developed tests and criteria to distinguish between individual employment disputes and disclosures of issues of genuine public concern. It is argued that Anglo-Saxon approaches had a decisive influence on the drafting of Directive (EU) 2019/1937, which established common whistleblower protection standards across EU Member States, combining elements of the U.S. sectoral model and the UK’s unified framework. The conclusion is drawn that for Ukraine, which is currently in the process of shaping a comprehensive whistleblower protection system, it is advisable to integrate positive features of both models: financial incentives and sectoral guarantees (U.S. experience) together with a unified legal mechanism focused on the “public interest” and judicial practice (UK approach). The article adds to the current academic discussion focused on reconciling whistleblower protections with the legitimate interests of employers.

The article examines the role of environmental whistleblowers in the process of Ukraine’s European integration and their contribution to strengthening the rule of law. The significance of the activities of environmental whistleblowers is substantiated both in view of the environmental challenges and dangers that Ukrainian society faces today, and in terms of establishing effective and efficient democracy. Information today serves as the basis of all competencies and orientations in life situations. Providing its citizens with complete and reliable information, generated or stored by the state, is an integral part of both respect for them and recognition of national sovereignty. Information issues are directly correlated with the state’s guarantee of effective implementation of the rule of law, and therefore with issues of European integration. Ensuring environmental security is one of the most important tasks of modern state policy. The activities of environmental whistleblowers in this case become an important mechanism for preventing violations of environmental norms, combating corruption, and building citizens’ trust in state institutions. An important component of the whistleblower institution is the creation of internal and external channels of communication, ensuring confidentiality and prohibiting the persecution of informants. This determines the right of citizens to access environmental information, participation in decision-making and access to justice in the environmental sphere. It has been established that environmental whistleblowers play a key role in identifying and preventing violations in the field of environmental protection, increasing transparency and accountability of government bodies. In Ukraine, the whistleblowing mechanism is provided for by the Law of Ukraine “On Prevention of Corruption”, but the environmental sphere remains virtually outside its regulatory influence. A positive moment for the national legal system was the accession to the Aarhus Convention and the introduction of environmental impact assessment and strategic environmental assessment procedures. However, the system of legal protection of environmental whistleblowers has not yet been created. The latter often face pressure and persecution that restrain their activity. Ukraine should use the experience of the European Union and its member states to create its own model of protection of environmental whistleblowers as a component of environmental and national security.

The main task nowadays is to find strategies to ensure a high level of national security. Assurance of the state security must be based on a democratically developed society, guaranteeing of a high level of rights and freedoms of the population, as well as inheritance of European values. National security is intertwined with geopolitics in such terms as state sovereignty, geopolitical role of the country, its geopolitics and geostrategy, the correlation of universal human and national interests, etc. From the scientific point of view, national security of Ukraine can be defined as a system of state and legal as well as social guarantees of living stability and stability of development of the Ukrainian people in general and each citizen in particular, protection of their basic values and legitimate interests, sources of spiritual and material development from possible real and potential, internal and external threats. It is the national security of the state that enables effective management of a transforming society, and this is the most relevant aspect in the current conditions in Ukraine. Political and legal methods and tools, which are based on the basic principles of complexity and systematics, are fundamental factors of national state security. Ukraine's geopolitical location turns it into a kind of geopolitical center - a state that performs communicative functions between two regional systems. Thus, the geopolitical center is a kind of territory of intermediate location, which in its own way is passive, and can be activated at any time in its own interests. The geopolitical component of national security involves preserving sovereignty, territorial integrity and defining its role in the geopolitical space, while ensuring a balance of power through international political, military-political, legal, economic and humanitarian institutions.

This chapter presents the international best practices for whistleblower laws and policies. It also discusses the global hot topics in relation to whistleblower protection, including the silencing of whistleblowers during the COVID-19 pandemic, the impact of the #metoo movement for the development of gender-specific whistleblower protection rules, the case of Edward Snowden, the special status of Julian Assange and the conflicting relationship between national security, leaks and whistleblowing. Through an analysis of the internal whistleblowing policies of the United Nations and the World Bank Group, the last part of the chapter highlights the specific challenges facing whistleblowers within international organizations.

The European Commission decided to propose legislation on the protection of whistle-blowers in order to strengthen enforcement of Union law and to provide an enforcement tool at the national and EU level. The Directive on the protection of persons reporting breaches of Union law has been approved by the European Parliament and the Council and it will soon be published in the Official Journal of the European Union. The whistle-blower is an enforcement tool which is given to Member States in order to enhance the enforcement of EU law. The whistle-blower is in a privileged position to detect and report wrongdoings and the new Directive aims to facilitate this process by providing a concrete definition of the whistle-blower, the procedural path of report and, finally, protection from retaliation or any kind of liability. Being a debated figure until recently, the whistle-blower becomes now a helpful tool for the better implementation and enforcement of Union rules. The Directive is a positive step towards a European legal framework on the protection of whistle-blowers and a change of attitude. However, there are dubious and complex points of the Directive that may harden, instead of facilitate, the work of the whistle-blower.

Terms related to the implementation of the Directive on the protection of the rights of whistleblowers By December 16, 2021, Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019, on the protection of persons reporting breaches of EU law, the so-called Whistleblower Protection Directive (Directive). This directive will enter into force on 17 December 2021. This means that, at least for employers with 250 or more employees, the effective date of the provisions will be December 17, 2021. The directive provides for the possibility of postponing the implementation of obligations for entities employing 50 to 249 until December 17, 2023. employees. The obligation to protect whistleblowers will apply to all entrepreneurs employing more than 50 employees, but this criterion does not apply if the entrepreneur is covered by one of the EU acts listed in Annex I to the directive. This applies, inter alia, to regulations concerning financial aspects or AML (counteracting money laundering and terrorism), entities that participate in public procurement tenders or use EU funds as part of their activities. Then the entrepreneur is to be subject to the obligations to implement the whistleblower protection requirements, regardless of the number of employees. Additionally, the directive explicitly encourages the national legislator to extend the obligations also to other areas of law and a broader scope of entrepreneurs. Therefore, it will be specified in the Polish act implementing the Directive.

Commentary to: The Johannesburg Principles on National Security, Freedom of Expression and Access to Information 1 Sandra Coliver (bio) I. Introduction National security and freedom of expression and information are often viewed as pulling in opposite directions. On the one hand, governments, particularly those that feel threatened by external or internal violence, maintain that disclosure of “secret” information or airing of critical opinions can undermine the very institutions that protect the security and well-being of law-abiding citizens. On the other hand, human rights defenders point to government suppression of speech on national security and related grounds [End Page 12] as having paved the way for some of the worst human rights violations, subversions of democracy, and threats to peace experienced in the last half of this century. Yet, national security is not fundamentally at odds with freedom of expression and information. To the contrary, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, better protected when the press and public are able to scrutinize government decisions than when governments operate in secret. 2 Freedom of expression and access to information, by enabling public scrutiny of government action, serve as safeguards against government abuse and thereby form a crucial component of genuine national security. Equally, national security is a pre-condition for the full enjoyment of all human rights, including freedom of expression. Undeniably, there are circumstances in which national security and freedom of expression clash head on. For instance, protection of a genuine national security interest requires the suppression of sensitive defense information or speech likely to promote violence against the state. The conflict is exacerbated by the fact that national security and related concepts (such as “state security,” “internal security,” “public security,” and “public safety”) are so imprecise that they may be, and frequently have been, 3 invoked by governments to suppress precisely the kinds of speech [End Page 13] that provide protection against government abuse, such as information or expression exposing circumvention of the democratic process, attacks on opposition parties, damage to the environment, corruption, wasting of public assets, and other forms of wrongdoing by government officials and their associates. Moreover, courts in countries around the world demonstrate the least independence and greatest deference to the claims of government when national security is invoked. This deference is reinforced by provisions in the security laws of many countries that trigger exceptions to ordinary rules of evidence and due process upon a minimal showing by the government of a national security risk. A government’s claim of a security threat can deal a knockout blow to the main institutional safeguards against government abuse: independence of the courts, due process of law, freedom of the press, and open government. The tension between expression and national security is particularly vexing because there is little margin for error and much at stake. Quick action often is necessary to thwart a genuine threat to national security but restraints on political speech can trigger an inexorable slide into tyranny. The more fragile the democracy, the less likely it is to be able to tolerate [End Page 14] either a threat to its genuine security or the suppression of legitimate political debate. It is this profound tension that led Article 19, the International Centre Against Censorship, to convene a group of independent experts to draft a set of principles that would adequately safeguard both the right to freedom of expression and information as well as the prerogative of governments to limit the right when necessary to protect a legitimate national security interest. The result was the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. 4 The Principles are based on international and regional law and standards relating to the protection of human rights, evolving state practice (including judgments of national courts), and general principles of law. While some of the Principles undoubtedly are more protective of freedom of expression than widely accepted international norms, they reflect the drafters’ view of the direction in which international law is, or should be, developing. Thirty-seven experts, hosted by the Centre for Applied Legal Studies of the University of the Witswatersrand, participated in the drafting, representing...

The chapter analyses the case law of the CJEU on national security and essential interests of member states security. It answers the following questions: what do the national security and essential security interests clauses in EU law actually mean, what is their content? What role do they play? What is the extent of discretion of the member states when applying those clauses? What are the requirements concerning an effective review of measures undertaken to protect security? The analysis leads to the conclusion that recent case law could be seen as the beginning of differentiation or stratification between clauses of public and national security. This case law is, however, contradicted to some extent by the interpretation of the ‘public security’ clause by the Court. Instead of demoting the public security to less crucial threats to ‘make room’ above for national security, the Court seems to continue to attribute to it fundamental importance (notably a threat to the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations). Also, as concerns the role of the national security clause, the difference between national and public clauses seems to be only quantitative, not qualitative. For the Court, the national security clause does not seem to be about the question of delimitation of competencies between the EU and the member states.

Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union

The need to combine free trade and FDI with the protection of national essential security interests and policies has led to the incorporation of ‘non-precluded measures provisions’ in IIAs (whether BITs or FTAs) that include FDI provisions. These kinds of provisions are not new. National interest exceptions have long been found in international agreements and treaties on international trade. They have played a significant role in international trade and now have a growing impact in the field of international investments. The absence of a common universal legal framework for FDI and the enormous fragmentation of the international investment legal system, plus the non-existence of an explicit national security exception in customary international law, gives these sorts of exceptions an important role to play in relation to FDI. These special rules have been drafted in order to limit or derogate from obligations that arise under specific treaty in which they are embodied on grounds of national security. These rules recognise the right of states to ‘self-defence’, although there is much debate about the exact terms on which this defence may be actually implemented. Trade and investment are increasingly linked to security and national security. These sorts of provisions are currently gaining in importance and are increasingly applicable to FDI ex post , as a general rule, as well as ex ante in a limited number of agreements. Many of these sorts of clauses in IIAs replicate – or are based on – provisions found in the WTO treaties. The interpretation of these provision by WTO Panels and case law is extrapolated to FDI. There is support for a broadening of the scope and goals of these non-precluded clauses and for an objectification of criteria and standards on which they are based and interpreted, as well as for an adaptation of the clause to the various kinds of threats that trade and investment may generate nowadays. There are concerns about the ability of national security clauses in their current form in the WTO system and many IIAs to cope with modern-day security challenges and the need for the state to have enough power to safeguard public policy. ARTICLE XXI GATT AS THE MODEL FOR NATIONAL SECURITY PROVISIONS Article XXI GATT constitutes the model for the national security provisions. It is reproduced in GATS and in many BITs and FTAs.