A contribution from Dr. Hava Yurttagül *
A. Introduction
In 2022, the Qatargate bombshell, ”the biggest scandal to ever hit the European Parliament” (‘Parliament’),[1] shook public trust in the European Union (‘EU’) institutions, and in particular in the integrity of Members of the European Parliament (‘MEPs’).[2] In the EU’s efforts to regain public confidence in its institutions, one thing might come in handy: whistleblower rules. Whistleblower protection for staff working in EU institutions could indeed help ensure accountability and integrity from within.
In its TU v Parliament judgment delivered in September 2024,[3] the EU General Court (‘GC’) had the opportunity to assess the effectiveness of such whistleblower rules put in place by the Parliament. The present paper will analyse its key findings in the light of international standards and the principles established by the Directive of 23 October 2019 on the protection of persons who report breaches of Union law (‘Whistleblower Directive’).[4]
B. Facts of the case[5]
The applicant was recruited as an accredited parliamentary assistant (‘APA’) by a grouping of MEPs to assist one MEP (‘MEP X’), for the period from August 2019 to February 2022. In July 2021, he submitted by email a request for assistance and protection, pursuant to Article 24 of the Staff Regulations of Officials of the European Union (‚the SR‘), relating to alleged acts of harassment by the MEP X. In the same email, the applicant also stated that he wanted to protect the financial interests of the EU by providing information about financial irregularities allegedly committed by the MEP X.
The same month, the Parliament adopted a temporary protective measure to place the applicant under the responsibility of the chair of a delegation (‘the transfer measure’), who was also a member of the grouping to which the MEP X belonged. In August 2021, the European Anti-Fraud Office (‘OLAF’) informed the Parliament that it was considering opening an investigation following the receipt of information relating the the applicant’s request for assistance under Article 24 of the SR, and in September 2021, OLAF informed the Parliament that allegation of financial irregularities had been referred to it by the applicant.[6]
In November 2021, the applicable submitted another request for assistance to the Parliament, supplemented by new evidence, which included documents relating to the alleged financial irregularities committed by the MEP X. In January 2022, the applicant alleged retaliation on the part of the leadership of the delegation under which responsibility he was following the transfer measure. He requested to be discharged from his duties in that delegation and transferred to any other post within the Parliament. He also asked that the Parliament should consider extending his contract so as to allow him to cooperate in the ongoing investigations. While the Parliament granted his request of discharge (‘the discharge measure’), the applicant’s request of renewal of his contract and transfer to another post within the Parliament were rejected implicitly.
In February 2022, the applicant reported to OLAF the acts of retaliation which he claimed to have suffered and contacted the person in charge of his file at the Parliament to raise several points: first, he requested to be granted the status of whistleblower and be protected under Article 22 a to Article 22c SR, and secondly, he claimed compensation for the damage allegedly suffered as a result of the disclosure of his status as a whistleblower. In September 2022, the Parliament Secretary-General rejected the complaint filed by the applicant against, inter alia, the decision not to renew his contract as well as against the implicit decision not to recognize his whistleblower status.
Before the GC, the applicant sought the annulment of the decision not to renew his contract and the implicit decision refusing to recognize his whistleblower status and adopt other protective measures in addition to the measure discharging him from his duties (‘the implied decision’). He also claimed compensation in the amount of EUR 200 000 for the damage suffered as a result of the failure by the Parliament to comply with Articles 22 a to c of the SR and its internal whistleblowing rules.
C. The General Court’s Judgment
On 11 September 2024, the GC delivered its judgment in the case and clarified the extent of protection provided to APAs under the Parliament internal whistleblower rules.
I. Preliminary remark
It is particularly interesting to note that the GC uses in its judgment the term ‘status of informant’ (in French ‘statut d’informateur’), a rather negatively connoted term, instead of ‘whistleblower’ (’lanceur d’alerte’). The latter term is used in most cases relating to whistleblowers within EU institutions and bodies, and in particular in the Bermejo Garde judgments,[7] which present the landmark case in respect to whistleblower protection under the SR.[8] It is to be hoped that the GC will return to the use of ‘whistleblower’ and ‘lanceur d’alerte’, in order to establish a consistent use of that term under Article 22a to c of the SR. For the sake of consistency, the term ‚whistleblower‘ will be used in this paper as an equivalent of the term ‘informant’ used by the GC in its judgment TU v Parliament.
II. Admissibility of evidence
In order to better understand the significance of the judgment TU v Parliament, the discussion over the admissibility of the evidence before the GC must be assessed. The applicant indeed produced different annexes in the proceedings, whose admissibility was disputed by the Parliament. The GC thus had to examine whether the production of those documents were decisive for the purpose of reviewing the lawfulness of the procedure leading to the adoption of the contested measure.[9]
One particular annex, which the GC excluded from the proceedings, is annex E.1 and its accompanying letter, which concern extracts from the administrative inquiry report adopted by the advisory committee responsible for examining complaints of harassment concerning MEPs (‚advisory committee‘). The GC explained that the content of those documents are not decisive for the purpose of examining the complaints raised by the applicant since the administrative inquiry relates to the handling of the applicant’s complaint of harassment, whereas the action before it concerned the treatment of the applicant’s status of whistleblower.[10]
This assessment is rather surprising for two reasons. First, harassment can be reported in the framework of Article 22a of the SR.[11] Secondly, the adequacy and effectiveness of the whistleblower protection framework put in place by the Parliament can only be assessed when taking into account all the detrimental effects suffered by the applicant. Disregarding evidence which could have helped the GC determine how the harassment claims of the applicant were related to the act of whistleblowing would have informed the GC about the effectiveness of the protection measures put in place against potential retaliatory measures.
III. The main findings of the General Court
1. On the recognition of the status of whistleblower
The GC first emphasised that article 22a of the SR, applicable by analogy to APAs by virtue of Article 127 of the Conditions of Employment of other Servants (‘CEOS’), applies to staff members who become aware of facts which give rise to a presumption of the existence of possible illegal activity or serious failure to comply with the obligations of officials.[12] In order to enjoy protection under Article 22a (3) of the SR, the staff member should communicate genuine, or at least probable, specific facts a preliminary examination of which would have reasonably led him or her to assume the existence of illegal activity or serious failure to comply with the obligations of officials.[13] The GC also recalled that such protection is granted, without any formalities, to officials who have provided information on facts giving rise to a presumption of illegal activity, simply by virtue of having provided such information.[14]
In the light of the above case-law, the CG concluded that the Parliament was not required to adopt a decision by which it recognizes that the applicant was a whistleblower, the applicant having acquired that status as soon as the administration became aware, in writing, of the facts referred to in Article 22 a of the SR.[15] Accordingly, it rejected the applicant’s claim for annulment of the implied decision rejecting his request of 10 January 2022 to be granted the status of whistleblower.[16]
2. On the failure to inform the applicant of the follow-up to his reporting
With regard to the follow-up given as a result of the whistleblower report made by the applicant, the CG first referred to the Parliament’s ‘Internal Rules Implementing Article 22 c of the Staff Regulations’ (‘internal rules’).[17] According to Article 5 of these internal rules applicable at the time of the facts:
”1. The whistleblower’s supervisor shall acknowledge receipt of the information forwarded to him or her within five working days of receiving it.
2. In accordance with Article 22 c of the Staff Regulations, the whistleblower shall be informed within 60 days of the period of time required in order to take appropriate action. He or she shall be informed at the earliest opportunity of any referral of the matter to OLAF.
3. On expiry of the period set by the Administration, the whistleblower shall be informed to the appropriate extent and with due regard for the circumstance of the case and the rights of third parties of the action taken by the institution and, in particular, of the conclusions reached following the investigations carried out and/or the nature of the action to be taken and/or taken”.
In the case at hand however, the GC pointed out that the applicant received none of the information set out above within the prescribed deadlines,[18] and ruled that such failure to inform the whistleblower constitutes a breach of Article 5 of the internal rules.[19] It further noted that even if the interplay between OLAF and Parliament investigations may delay the notification of information the Parliament is able to provide with respect to the action to be taken and/or taken, the GC emphasized nonetheless that the obligation of the Parliament to inform the whistleblower does not cease to exist when the latter decides to refer the matter directly to OLAF.[20]
3. On the protective measures taken by the Parliament
a) With regard to the burden of proof that the protective measures taken are adequate
In determining whether the Parliament implemented adequate protective measures following the whistleblower report made by the applicant, the GC referred to the Whistleblower Directive and reiterated that while this directive does not bind the EU institutions, it may nevertheless impose indirect obligations on the EU institutions in their relations with their officials in certain specific cases.[21] The GC therefore concluded that the Parliament cannot lay down rules which are less protective than those specifically adopted by the EU legislature as regards the protection of reporting persons by the EU Member States.[22] In the present case, the GC found that the Parliament carries the burden of proof that it has fulfilled its duty to protect the whistleblower by adopting adequate protective measures, the applicant having provided credible evidence that he suffered prejudicial effects.[23]
b) With regard to the adequacy of the protective measures taken
The question thus arose as to whether the Parliament did demonstrate that the two measures adopted — the transfer measure and the discharge measure — were adequate protective measures following the whistleblower report of the applicant. The GC recalled in this respect that Article 22a(3) of the SR requires the Parliament to take all the necessary measures to ensure that whistleblowers receive balanced and effective protection against any form of retaliation.[24] If the non-renewal of the applicant’s contract was considered justified in view of the rules governing the employment of APAs,[25] the GC found that the Parliament should have supported the applicant by advising and assisting him, as well as by trying to help him to find a solution, pursuant to its obligation under Articles 3 and 4(2) of the internal rules,[26] which are applicable to APAs.[27] That said, the GC underlined that the duty to have regard to the welfare of staff (‘devoir de sollicitude’) does not require the Parliament to renew the contract of an APA who acquired the status of whistleblower.[28]
4. Preliminary conclusion
In view of the above findings, the CG concluded that the Parliament did not demonstrate that it adopted all the necessary measures to ensure that the applicant does not suffer any prejudicial effect on the part of the institution as a result of his status as a whistleblower,[29] and thus infringed its obligations under Articles 3 and 4(2) of the internal rules, as well as Article 22a of the SR.[30] The Parliament also infringed its obligation under Article 4(1) of the internal rules by disclosing the applicant’s whistleblower status in the context of the discharge measure following the request for assistance of the applicant.[31] The GC further emphasized that it is for the Parliament, and not the Court, to determine, in the circumstances of the present case, which specific protective measures could have been adopted.[32] However, it dismissed the plea in so far as it alleged the inadequacy and insufficiency of the internal rules themselves.[33]
On the principle of equal treatment
While the GC acknowledged that the applicant and APAs who have not reported financial irregularities were treated in the same way as regards the renewal of their contracts despite being in different situations, such treatment was justified by the bond of trust which must exist between an APA and the Member for whom he or she works and by the independence enjoyed by political groupings vis-à-vis their internal organisation.[34]
On the claims for compensation
The GC first noted that the applicant did not bring sufficient evident supporting his claim that he suffered material harm, such as the damage to his career.[35] With regard to the non-material damage suffered, in particular the considerable anxiety[36] and the failure by the Parliament to adopt sufficient protective measures arising from the applicant’s status as a whistleblower, with consequences on his health, his professional reputation and his future career in European political circles,[37] the GC found that it cannot be repaired by the annulment of the unlawful measure.[38] Confirming the causal link between the unlawful acts and the non-material damage suffered by the applicant,[39] the GC assessed the latter to beex æquo et bono, at EUR 10 000.[40] It further ruled that the implied decision must be annulled in so far as, by that decision, the Parliament refused, in response to the applicant’s request, to adopt other protective measures in addition to the measure discharging him of his duties.[41]
D. Opinion
The GC TU v Parliament judgment brought welcome clarification on the extent of the obligation under Article 22a(3) of the SR. I would argue however that the GC missed a rare opportunity to further develop its case-law in respect to whistleblowing reports made by staff members, so as to align it to the standards established by the Whistleblower Directive. Furthermore, and as will be illustrated below, the Court confirmed previous case-law to a certain degree but did not draw the consequences of existing principles established by the Bermejo Garde rulings.
The admissibility of annex E.1
In my view, the inadmissibility of annex E.1 reflects the fact that the GC took no heed of the Bermejo Garde case-law. It indeed considered that annex E.1, which contains extracts of the administrative investigation report adopted by the advisory committee, accompanied by a letter setting out the applicant’s observations, should not be kept since ”their content is not decisive for the purpose of examining the complaints raised by the applicant. The administrative investigation report of 17 June 2022 concerns the handling of the applicant’s complaint of harassment, whereas these proceedings relate to the handling of his status as a whistle-blower”.[42]
The GC however seems to forget that allegations of harassment could play a role in whistleblower cases. According to the Bermejo Garde case-law, harassment indeed constitutes in itself a serious failure to comply with statutory obligations within the meaning of Article 22a(1) of the SR.[43] If an official cannot be required to report harassment under Article 22a of the SR,[44] s/he could still do so if s/he wishes.[45] In case s/he does decide to report allegations of harassment, the Bermejo Garde case-law is clear in that practices suggesting the existence of harassment, combined with facts suggesting conducts detrimental to the interests of the EU, give rise to the presumption of the existence of serious misconduct in the context of Article 22a of the SR.[46]
In the case TU v Parliament, the extracts of the administrative investigation report adopted by the advisory committee contained in annex E.1 could thus have influenced the assessment of the GC with regard to the seriousness of the misconducts reported by the applicant, and influenced the assessment of the non-material damage suffered by the applicant. In the Bermejo Garde case, the EU Civil Service Tribunal (‘CST’) indeed took into account the harassment suffered by the applicant when assessing the claim for compensation, and ordered the EESC to pay EUR 25,000 in damage for the non-material harm suffered by the applicant.[47]
The particular vulnerability of APAs who decide to blow the whistle
The TU v Parliament judgment is a good illustration of the particular vulnerability of APAs under the whistleblowing framework established by the SR, the internal rules, and the Court’s case-law. This vulnerability was already highlighted by the European Court of Auditors (‘ECA’) in its Special Report on the ethical frameworks of the audited EU institutions, in which it recommended that the Parliament adopts ”whistleblowing rules for APAs to reflect better the specific and dependent nature of their posts”.[48] In the TU v Parliament judgment however, it is interesting to note that the GC dismissed the plea in so far as it alleged the inadequacy and insufficiency of the internal rules themselves,[49] considering in essence that the internal rules were adequate to protect APAs if they decide to blow the whistle.
Such position is not unusual and reflects a common approach when dealing with APAs who blow the whistle on facts which give rise to a presumption of the existence of possible illegal activity within the Parliament. The case 1517/2017/FJ of the European Ombudsman (EO) can be mentioned in this context, which concerned the early termination of an APA contact.[50] The EO complaint was lodged by an APA, who claimed that the early termination of his contract constituted retaliation following his whistleblower report to the Parliament’s Secretary General.[51] In response to the complaint, the Parliament argued, inter alia, that the relationship of trust no longer existed between the APA and his MEP, and that the APA did not demonstrate that the early termination of his contract was a measure taken in retaliation for his attempt to contact the Secretary General to report potential wrongdoing.[52] The Parliament’s arguments convinced the EO, which concluded that no further inquiries were warranted.[53]
This EO case, much like the case which led to the judgment analyzed herein, is indicative of a particular issue in the assessment of whistleblower cases involving APAs: the specific nature of their functions and duties and the mutual trust which must exist with MEPs. In its Bermejo Garde case-law however, the EU Courts recognized that any complaint of moral or sexual harassment in most cases results in a breach of the bond of trust.[54] Since harassment complaints fall within the scope of Article 22a of the SR according to the Court’s case-law,[55] it could be concluded that the breach of the bond of trust, which is often inevitable in the context of a whistleblower report, should be given due consideration in the assessment of the protection afforded to staff members. It is particularly true in the case at hand since the applicant’s status of whistleblower was disclosed during the internal proceedings. In its judgment however, the GC does not seem to draw the conclusions from that Bermejo Garde case-law.
I regret that the link between the breach of the bond of trust and the non-renewal of the applicant’s contract was not assessed by the GC in its TU v Parliament judgment. If it recognized the bond of trust which must exist between an APA and the Member for whom he or she works,[56] the GC does not determine whether in the case at hand, the breach of the bond of trust was linked to the whistleblower report made by the applicant. This is particularly regrettable considering the obligation incumbent on the institution to protect the staff member from any kind of prejudice, especially when the bond of trust no longer exists.[57] If the GC acknowledged that the initiative of renewing an APA contract rests solely with one or more MEPs pursuant to Article 127 of the CEOS, especially in view of the need of the bond of trust between the APA and the MEPs,[58] it should have recalled the obligation of the Parliament in the case of the loss of the bond of trust and draw the consequences from the Bermejo Garde case-law.
If the GC rightly pointed out that the renewal of the applicant’s contract as an APA is prevented by the CEOS,[59] the assessment of the relation between the whistleblower report, the breach of the bond of trust and the non-renewal of the applicant’s contract could have helped it to better evaluate the prejudice suffered by the applicant and the compensation he should be granted.
The burden of proof
This observation leads us to one controversial aspect of the EU Courts‘ whistleblowing case-law, which the GC could have overturned in its judgment: the question of the burden to prove that the prejudice suffered by the whistleblower constitutes retaliation. If Article 22a(3) of the SR provides that officials shall not suffer prejudicial effects on the part of the institution as a result of blowing the whistle, the Court consistently held that this provision does not offer a general protection and requires that the adverse act or measure was adopted because of the whistleblower report made.[60] As to the question of the burden of proof, the Court made clear that it is incumbent upon the whistleblower to establish the existence of a close link, possibly by means of a set of specific and consistent evidence, between the acts adversely affecting him or her, and the act of whistleblowing.[61]
This case-law is inconsistent with the Whistleblower Directive, which provides under Article 21(5) that ”it shall be for the person who has taken the detrimental measure to prove that that measure was based on duly justified grounds”. This provision reflects the international consensus with regard to an effective whistleblower protection framework. Recital 93 of the Whistleblower Directive sets out the rationale in the following terms:
”Retaliation is likely to be presented as being justified on grounds other than the reporting and it can be very difficult for reporting persons to prove the link between the reporting and the retaliation, whilst the perpetrators of retaliation may have greater power and resources to document the action taken and the reasoning. Therefore, once the reporting person demonstrates prima facie that he or she reported breaches or made a public disclosure in accordance with this Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then be required to demonstrate that the action taken was not linked in any way to the reporting or the public disclosure.”
It should be recalled in this context that in its TU v Parliament judgment, the GC observed that even if the Whistleblower Directive does not bind EU institutions, the Parliament cannot provide for less protective measures than those which have been specifically adopted, in that regard, by the EU legislature in relation to the protection of whistleblowers by the Member States.[62] Following this reasoning, the GC could have used its TU v Parliament judgment to align its case-law to the standard established by the Whistleblowing Directive, and ensure a consistent application of whistleblower protection rules, in EU Member States and within EU institutions, agencies and bodies. The European Commission for example already adopted whistleblowing guidelines which set this reversal of the burden of proof, providing under Section 3 its Whistleblowing Guidelines that ”[r]egarding burden of proof, it shall be up to the person taking any adverse measure against a whistleblower to establish that the measure was motivated by reasons other than the reporting.”[63]
Under the plea alleging an abuse of process, the applicant raised the very question of the burden of proof and considered that it is for the administration to show that the decision not to renew the contract is unconnected with his status as a whistleblower.[64] Unfortunately, instead of addressing this question and overturning previous case-law, the GC avoided the issue by stating that that plea overlaps an earlier argument. However, in the section referred, the GC merely observed that the Parliament could not renew the applicant’s contract considering the absence of a request by MEPs.[65] It did not address why there was no request by MEPs and whether the lack of request may have been linked to the absence of the bond of trust, which may have been a consequence of the applicant’s whistleblower report. The fact that the applicant’s status of whistleblower was disclosed without his consent should have, at the very least, reversed the burden of proof established by constant case-law, the Parliament having to demonstrate that the loss of the bond of trust which appears to have led to the non-renewal of the applicant’s contract was not caused by the applicant’s whistleblower report. If the Parliament was unable to bring sufficient evidence to demonstrate that there was no such link, the GC’s assessment on the compensation might have been different.
As the Committee of Legal Affairs of the Council of Europe explained in its Report on the protection of “whistle-blowers”, whistleblowers are putting their career on the line in order to stop a serious problem.[66] While the GC itself acknowledged that the consequences to the applicant’s health, professional reputation and future career in European political circles cannot easily be corrected, the fact that it did not address the causal link between the non-renewal and the harassment allegations on the one hand, and the act of whistleblowing on the other hand, may have influenced its assessment of the non-material damage suffered by the applicant. By way of example, the CST granted EUR 25,000 in damage to Mr. Bermejo Garde, whose appointment as Head of the Legal Service was terminated following his whistleblower report (judgment of 2016). In the present case, the GC granted the applicant compensation of EUR 10.000 (judgment of 2024).
The status of whistleblower
The GC’s confirmation of the case-law, according to which the protection under Article 22a of the SR is granted, without any formalities, if information on facts giving rise to a presumption of illegal activity are provided, is to be welcomed.[67]While it does not put into question the undeniable interest staff members have in the recognition of their whistleblower status,[68] the case-law confirmed by the GC in its TU v Parliament judgment ensures the automatic protection without additional legal measure required.[69] Since the protection is not conditioned upon the legal recognition of the status of whistleblower by the institution, the GC can focus, as it did in its TU v Parliament judgment, on the question of whether the institution undertook all necessary measures to protect that staff member as from the moment of his or her whistleblower reporting. It must also be noted that it is not the Court’s role to order an institution to recognize the whistleblower status of staff members, in line with settled case-law according to which the EU Courts do not have jurisdiction to issue directions to the administration when exercising judicial review of legality under Article 91 of the SR. [70]
That said, if the recognition of the whistleblower status is not to be addressed by the Court, EU institutions, agencies and bodies may want to consider this possibility in the context of their communication with whistleblowers. The Parliament itself recognized the value of such recognition in the McCoy case. The case concerned a former official of the Committee of the Regions (CoR), who reported on irregularities, primarily in the CoR’s budgetary management.[71] The Parliament urged the CoR ”to take all necessary steps to resolve this situation without further delay and to admit publicly that the whistleblower’s findings were correct, as stated by the European Anti-Fraud Office and other Union bodies”.[72] In 2020, two documents were made public in relation to this case, a draft amicable settlement of EUR 259.997,21 to compensate for the material and non-material damages of Mr. McCoy, and a draft statement of the CoR recognizing the good faith of Mr. McCoy, stating that the latter “acted as a whistleblower in the general sense of the word before a provision on whistleblowing was introduced in the Staff Regulations in the year 2004”.[73]
E. Conclusion
If the TU v Parliament judgment confirms, in many respects, constant case-law, the GC did fortunately not confirm the position it took in another judgment that same year, the TO v AUEA judgment.[74] In the latter judgment, the GC indeed held that the motive of the official is an integral part of the element of good faith under Article 22a of the SR.[75] That position is in sharp contradiction not only with the Court’s previous case-law but also with the Whistleblower Directive and the international consensus on the subject. If it is true that the CST initially included the motive as a criterion upon which the protection granted under Article 22a of the SR is conditional,[76] it never actually assessed that criterion.
Subsequent judgments confirmed that only three criteria should be taken into account to determine whether the staff member acted reasonably and honestly pursuant Article 22a of the SR, that is, (1) the seriousness of the irregularities reported, (2) the authenticity of the information, and (3) the reporting means used, excluding thereby the motive of the disclosure as fourth criterion.[77] Recital 32 of the Whistleblower Directive provides in this respect that ”[t]he motives of the reporting persons in reporting should be irrelevant in deciding whether they should receive protection”. Such line is consistent with the position of the Council of Europe and the United Nations Special Rapporteur on the promotion and the protection of the right to freedom of opinion and expression David Kaye, both excluding the motive as a legitimate criterion upon which whistleblower protection should be granted.[78]
Regrettably, the position of the GC in its TO v AUEA judgment as regard the motive of the staff member reflects another court’s case-law: the European Court of Human Rights (ECtHR). The ECtHR, which consistently held that the motive of the employee should be taken into account when determining his or her good faith, confirmed it once again in the 2023 key case Halet v Luxembourg.[79] The case concerned the LuxLeaks revelation made by a former PwC employee, Mr. Halet. If the ECtHR considered at first instance that Mr. Halet could not be granted protection under Article 10 of the European Convention on Human Rights (ECHR),[80] the Grand Chamber of the ECtHR overturned that judgment and held that Mr. Halet should be considered a whistleblower under the ECHR and be granted protection accordingly.[81] It reiterated however that the motives of the employee is a qualifying element of the good faith.[82]
It is to be hoped that the EU Courts will consolidate its position away from the motives of the whistleblower and clarify its position so as to align its case-law to the Whistleblower Directive and the international consensus. The upcoming judgment L v Parliament may present such an opportunity.[83]
* Dr. Hava Yurttagül is a legal officer at the European Commission.
Disclaimer: The information and views set out in this article are those of the author and do not necessarily reflect the official opinion of the European Commission.
[1] Vinocu, Braun, Wax & Volpicelli, When Eva met Francesco: The golden couple at the heart of Europe’s Qatargate scandal,Politico, 09/12/2023, available here.
[2] On the consequences for Parliament staff members involved, see for example: GC, Judgment of 11 June 2025, EO v Parliament, T-368/24, ECLI:EU:T:2025:583.
[3] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, ECLI:EU:T:2024:614.
[4] Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, OJ L 305, 26.11.2019, pp. 17–56.
[5] ‚The Facts of the case‘ reproduces in part the résumé of the T‑793/22 judgment available on the CURIA, see link here.
[6] In April 2022, OLAF closed its investigation into the financial irregularities, considering that such investigation was a matter for the European Public Prosecutor’s Office (‘the EPPO’). The latter opened an investigation the same year.
[7] CST, Judgment of 2 June 2016, Bermejo Garde v EESC, F-41/10 RENV, ECLI:EU:F:2016:123.
[8] One the emerging consensus in Europe, see Yurttagül, Whistleblower Protection by the Council of Europe, the European Court of Human Rights and the European Union: An emerging Consensus, Springer Nature, 2021 (hereinafter ‘Yurttagül, An Emerging Consensus’), pp. 181 et sequ.
[9] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, paras 60 et sequ.
[10] Ibid., para. 70.
[11] CST, Judgment of 2 June 2016, Bermejo Garde v EESC, F-41/10 RENV, cited above, para. 80.
[12] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, para. 78.
[13] Ibid., para. 79.
[14] Ibid., para. 81.
[15] Ibid., paras 81-82.
[16] Ibid., para. 83.
[17] The internal rules implementing Article 22c of the Staff Regulations applicable at the time of the facts entered into force on 1 January 2016. Since 1 December 2023, new internal rules implementing Article 22 c of the Staff Regulations entered into force.
[18] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, para. 93.
[19] Ibid., para. 102.
[20] Ibid., paras 93-101.
[21] Ibid., paras 109-110.
[22] Ibid., para. 111.
[23] Ibid., para. 115-116.
[24] Ibid., para. 128.
[25] Ibid., para. 135, see also paras.192-196.
[26] Ibid., para. 138 and 142.
[27] Ibid., para. 137.
[28] Ibid., para. 202.
[29] Ibid., para. 143.
[30] Ibid., para. 145
[31] Ibid., para. 180-181.
[32] Ibid., para. 144.
[33] Ibid., para. 162.
[34] Ibid., para. 200.
[35] Ibid., para. 233-234.
[36] Ibid., para. 239.
[37] Ibid., para. 240.
[38] Ibid., para. 241.
[39] Ibid., para. 247.
[40] Ibid., para. 248.
[41] Ibid., para. 249.
[42] Ibid., para. 70.
[43] CST, Judgment of 2 June 2016, Bermejo Garde v EESC, F-41/10 RENV, cited above, para 80.
[44] On the obligation under the EU SR to blow the whistle, see Yurttagül, An Emerging Consensus, pp. 151-152.
[45] GC, Judgment of 8 October 2014, Bermejo Garde v EESC, T-530/12 P, ECLI:EU:T:2014:860, para. 106.
[46] CST, Judgment of 2 June 2016, Bermejo Garde v EESC, F-41/10 RENV, cited above, para. 80 in fine.
[47] Ibid., paras 103-104.
[48] European Court of Auditors, Special report no 13/2019: The ethical frameworks of the audited EU institutions: scope for improvement, 19/07/2019, Recommendation 1(5), p. 37, available here.
[49] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, para. 162.
[50] European Ombudsman, Decision in case 1517/2017/JF on the early termination of the complainant’s contract as an accredited parliamentary assistant by the European Parliament, 08/02/2018, available here.
[51] Ibid., para. 6.
[52] Ibid., para 10-11.
[53] Ibid., Conclusion.
[54] CST, Judgment of 2 June 2016, Bermejo Garde v EESC, F-41/10 RENV, cited above, para. 76.
[55] GC, Judgment of 8 October 2014, Bermejo Garde v EESC, T-530/12 P, ECLI:EU:T:2014:860, para. 106.
[56] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, para. 133.
[57] CST, Judgment of 2 June 2016, Bermejo Garde v EESC, F-41/10 RENV, cited above, para. 76.
[58] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, para. 133.
[59] Ibid., paras 135 and 196.
[60] CST, Judgment of 24 February 2010, Menghi v ENISA, F-2/09, ECLI:EU:F:2010:12, para. 139; CST, Judgment of 11 July 2013, AN v Commission, F-111/10, ECLI:EU:F:2013:114, para, 90; GC, Judgment of 13 December 2017, CJ v. ECDC, T-602/16, ECLI:EU:T:2017:893, para. 112; GC, Judgment 19 June 2024, TO v EUAA, T-831/22, ECLI:EU:T:2024:404, para. 83.
[61] GC, Judgment of 13 December 2017, CJ v. ECDC, T-602/16, cited above, para. 112; see also GC, Judgment of 15 May 2019, CJ v. ECDC, C-170/18 P, ECLI:EU:C:2019:410, para. 66; CST, Judgment of 11 July 2013, AN v Commission, F-111/10, paras 93-94; GC, Judgment 19 June 2024, TO v EUAA, T-831/22, cited above, paras 83-84.
[62] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, paras. 110-111.
[63] European Commission, Communication from Vice-President Šefčovič to the Commission on Guidelines on Whistleblowing, SEC(2012) 679 final.
[64] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, para. 204-205.
[65] Ibid., para. 196.
[66] Council of Europe, Committee on Legal Affairs and Human Rights, Report on the protection of “whistle-blowers”, Summary, Doc. 12006, 14 September 2009.
[67] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, para. 81.
[68] Vaughn, The successes and failures of whistleblower laws, Edward Elgar, 2012, pp. 139-140; UNODC, The United Nations Convention against corruption – resource guide on good practices in the protection in the protection of reporting persons, 2015, pp. 67-68, available here.
[69] GC, Judgment of 11 September 2024, TU v Parliament, T‑793/22, cited above, para. 83.
[70] GC, Judgment of 23 July 2025, Flett v Commission, T-613/23, ECLI:EU:T:2025:749, para. 14.
[71] For an extensive analysis of the case, see Yurttagül, An Emerging Consensus, pp. 197-203.
[72] Recital 33 Resolution (EU) 2016/1479 of the European Parliament of 28 April 2016 with observations forming an integral part of the decision on discharge in respect of the implementation of the general budget of the European union for the financial year 2014, Section VII, Committee of the Regions, OJ L 246, 14.09.2016, pp. 152-155.
[73] European Committee of the Regions, Draft Amicable settlement and Draft public statement of the European Committee of the Regions about an amicable settlement with former staff member Robert McCoy, 10 November 2020.
[74] GC, Judgment 19 June 2024, TO v EUAA, T-831/22, cited above,
[75] Ibid., para. 80.
[76] CST, Judgment of 25 September 2012, Bermejo Garde v EESC, F-41/10, ECLI:EU:F:2012:135, para. 138.
[77] GC, Judgment of 8 October 2014, Bermejo Garde v EESC, T-530/12 P, cited above, para. 117; CST, Judgment of 2 June 2016, Bermejo Garde v EESC, F-41/10 RENV, cited above, para. 78.
[78] United Nations, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/70/361, 08/09/2015, para. 31; Council of Europe, Recommendation CM/Rec(2014)7 adopted by the Committee of Ministers, 30/04/2016, Explanatory memorandum, para. 85.
[79] ECtHR GC, Judgment of 14 February 2023, Halet v Luxembourg, no. 21884/18. On the ECtHR case-law on the subject of whistleblower protection under Article 10 ECHR, see Yurttagül, An Emerging Consensus, pp. 111-140.
[80] ECtHR, Judgment of 11 May 2021, Halet v Luxembourg, Appl. no. 21884/18. For case analyses of that judgment, see Yurttagül, LuxLeaks Whistleblower Not Protected by Article 10 ECHR – Case Analysis of “Halet v. Luxembourg” (ECtHR, Appl. no. 21884/18), 02/06/2021, Saar Brief, available here; see also Yurttagül, LuxLeaks Scandal and Corporate Whistleblowing: Reflecting on ‘Halet v Luxembourg’, Oxford Business Law Blog, 27/07/2021, available here.
[81] ECtHR GC, Judgment of 14 February 2023, Halet v Luxembourg, no. 21884/18. For case analyses of the judgment, see Yurttagül, ECtHR GC Judgment in Halet v Luxembourg – Did Halet Win the Battle But Whistleblowers Lose the War in Strasbourg?, Saar Expert Papers, 05/2024, available here; Csúri, ECtHR: Grand Chamber Reinforces Protection of Whistleblowers, Eucrim, 03/04/2023, available here; Kafteranis & Andreadakis, Halet v Luxembourg: A Victory of the Unsung Heroes, EU Law Analysis, 24/02/2023, available here; Foegle, New Wine in Old Bottles – LuxLeaks, Whistleblowers and the ECtHR, Verfassungsblog, 23/02/2023, available here.
[82] ECtHR GC, Judgment of 14 February 2023, Halet v Luxembourg, no. 21884/18, para. 123; position confirmed in the latest judgment on the subject, see ECtHR, Judgment of 27 August 2024, Hrachya Harutyunyan v Armenia, no. 15028/16, para. 60.
[83] GC, L v Parliament, Action brought on 17 December 2024, T-655/24.
Suggested Citation: Hava Yurttagül, The European Parliament & Whistleblowers: Case analysis of the General Court ruling TU v European Parliament (T-793/22), jean-monnet-saar 2025.
DOI: https://doi.org/10.17176/20250904-150341-0
Funded by the Deutsche Forschungsgemeinschaft (DFG, German Research Foundation) – Project No.: 525576645
