The article provides a detailed examination of Lithuania’s legislative and practical approaches to whistleblower protection from 2010 to the adoption of a new law transposing an EU directive in 2022. Initial efforts to protect whistleblowers in Lithuania began in 2010. The law, adopted in 2017, was Lithuania’s first comprehensive framework for whistleblower protection. It centralized protections in one law, expanded the scope of reportable violations beyond corruption, and established safeguards for whistleblower confidentiality and protection from retaliation. Early reports indicated gaps in implementation and protection, with many whistleblowers facing retaliation. The law provided legal aid and set conditions for reporting, yet practical enforcement was inconsistent, and awareness among potential whistleblowers remained low. The revised law in 2022 further aligned with EU standards, defining whistleblowers more broadly, extending protections to family and colleagues, and enhancing legal safeguards. This update aimed at improving the practical implementation of whistleblower protections.

The article also discusses the relationship between the whistleblower law and other legal frameworks like the Labour Code, highlighting areas where harmonization is needed to effectively protect whistleblowers in various contexts, including employment and civil service.

SOMMARIO:

1. Attempts to regulate whistleblower protections - 2. Situation in practice - 3. The new law transposing an EU directive - 4. Situation in practice - 5. Relationship between the Law on the Protection of Whistleblowers, the Labour Code and the Law on Civil Service in establishing a mechanism for the legal protection of whistleblowers - 6. Relevant case law - 7. Conclusions - NOTE

1. Attempts to regulate whistleblower protections

The first efforts to regulate the protection of whistleblowers in Lithuania at the legislative level were made as early as in 2010. At that time, the Seimas registered the Draft Law on the Protection of Whistleblowers (XIP-2459), [1] which was prepared by the Lithuanian Chapter of Transparency International together with the Special Investigation Service of the Republic of Lithuania (the state institution authorised to act in the field of corruption prevention) after public discussions with representatives of state authorities responsible for corruption prevention. It was acknowledged at that time already that such law was necessary not only by the real situation in this area, that is, the lack of regulation of whistleblower protection, but also by Lithuania’s international obligations in the area of whistleblower protection under the United Nations Convention against Corruption this Convention (Article 33: “Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention”) and the Civil Law Convention on Corruption (Article 9 “Protection of employees”: “Each Party shall provide in its internal law for appropriate protection against any unjustified sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities”). However, at that time, the Draft Law did not receive support in the Seimas where it was argued that it might not be in line with the Constitution, that it needed to be improved both in terms of legislative principles and legal technique rules, and that it duplicated other legal acts already in force, in particular, the Code of Criminal Procedure as well as the Labour Code, the Law on Protection against Criminal Impact, the Law on Civil Service, and other laws. The Draft Law was, therefore, rejected. The idea of adopting a special law to protect whistleblowers was revisited in 2017. At that time, Lithuania was actively involved in the negotiations for membership of the Organisation for Economic Co-operation and Development (OECD) and implemented a number of OECD recommendations. The drafting of the Law was prompted by the fact that Lithuania still did [continua ..]

2. Situation in practice

Below we present the practical information that existed when the first wording of the Law was in force. According to the annual reports of the General Prosecutor’s Office: 1) in 2019: [8] reports with information were provided by 68 persons, of whom 36 were recognised as whistleblowers; 80% of all breaches were in the public sector and related to potential abuse of office and document fraud; there were also reports on breaches of the Law on Whistleblower Protection, i.e. the failure to put in place internal reporting channels; 4 persons who were not recognised as whistleblowers appealed against the decisions to the court, however, the court relied on the lex retro non agit rule and did not grant their requests as the circumstances reported by the persons had already been investigated prior to the entry into force of the Law on Whistleblower Protection; 12 persons complained of adverse actions, two of whom stated that adverse impact was experienced not by them but by their spouses who worked in the same public sector area; the predominant types of adverse action were insisting on voluntary redundancy, denial of annual leave, pay cuts, excessive official inspections, curtailment of official authorities; prosecutors carried out investigations (examined the material received) and informed 7 employers that their actions against the persons with whistleblower’s status were impermissible and ordered the employers to discontinue such actions; no remuneration and compensations were provided; 5 persons received free secondary legal aid. The report also notes that the representatives of the Prosecutor’s Office paid considerable attention to educating, informing and consulting the public and employees of other institutions because the institute of whistleblower protection was an obvious novelty in Lithuanian law; 2) in 2020: [9] the Prosecutor General’s Office joined the NEIWA (Network of European Integrity and Whistleblowing Authorities) network; it should be noted that already at that time the experts of this network stated that the model of whistleblower protection in force in Lithuania was actually in line with the requirements of the EU Directive, which was still new at that time; it was emphasised that Lithuania applied very extensive measures to assist whistleblowers: counselling via the hotline of the prosecutor’s office, free legal assistance. Reports were made by 81 persons, of whom 49 were recognised as [continua ..]

3. The new law transposing an EU directive

As mentioned above, in order to transpose the provisions of Directive 2019/1937, a recast Law on Whistleblower Protection [12] was adopted in 2021 and entered into force on 15 February 2022. The Law has transposed the following provisions of the Directive: (1) in line with the Directive, the concept of whistleblower has been defined to include not only persons involved in employment relations, but also in other contractual relations, as well as self-employed persons, shareholders, members of corporate management bodies, trainees, volunteers, etc.; (2) a provision ensuring protection for family members of a whistleblower (who are considered in the context of this Law to include parents, children, siblings and their spouses living in the same household of the person, spouse or partner of the person, parents of the spouse, dependants or former spouses), as well as for the whistleblower’s colleagues and subordinates; (3) a non-exhaustive list of information that may be reported (based on the lists contained in the Directive); (4) introduction of three channels to report information: internal, external and public, with a preference for the internal channel; indication of circumstances when a whistleblower can opt out of the internal channel, however, the conditions are very vague and do not, in principle, limit the whistleblower in practice; (5) the competent authority remains the Prosecutor General’s Office; (6) imperative requirement that the information reported by whistleblowers must be stored for 5 years; (7) an exhaustive list of protection, support and encouragement measures: (a) all persons who report information shall be guaranteed from that moment onwards – (i) confidentiality, (ii) the prohibition of any adverse actions against him/her, (iii) the right to receive full, impartial information and free consultations; (b) once a person has been recognised as a whistleblower, additional safeguards shall be ensured – (i) the right to remuneration for valuable information, (ii) the right to compensation, (iii) the guarantee of free legal aid, (iv) exemption from liability; (8) introduction of a non-exhaustive list of actions considered to have adverse impact on the whistleblower and the rule that the prohibition of adverse actions applies to the employer and to other employees of the relevant institution; it should be noted that, in the case of a dispute concerning potential adverse actions against the whistleblower, [continua ..]

4. Situation in practice

The assessments [15] of internal reporting channels carried out by the Prosecutor General’s Office and Transparency International Lithuania (TILS) in 2020 and 2021 showed that 9 out of 10 public sector institutions provided opportunities to report concerns within the institution. At that time, 8 out of 10 private sector institutions had internal channels. However, according to the assessment data, one forth of the public sector institutions that had internal reporting channels in place did not ensure that the reports are not accessible to those being reported. In addition, the descriptions of the internal channels of half of the private sector institutions, in view of the prosecutor’s office, had to be improved. The experts point out the following problematic aspects: (i) the persons responsible for the administration of internal channels are not sure how the statutory requirements should be implemented in practice where a report is received through an internal channel; (ii) internal investigations can often fail to ensure the confidentiality of the individual; (iii) persons are more likely to report anonymously to protect themselves from adverse impact; (iv) it is extremely difficult to prove at court that a person is being adversely affected; (v) the prevailing organisational climate – (a) the organisational culture of public sector institutions discourages employees from reporting concerns; (b) the pervasive perception that whistleblowers are “rats”; (vi) infrastructural problems – (a) lack of dissemination of information on the Law on the Protection of Whistleblowers to the population – most of the population are not aware of the rights guaranteed by the Law on the Protection of Whistleblowers; (b) lack of resources in some of the institutions responsible for the implementation of the Law on the Protection of Whistleblowers; (c) lack of a regular dialogue between the institutions implementing the Law on the Protection of Whistleblowers; (vii) legal environment – (a) there is a good legal environment for the protection of whistleblowers in Lithuania, however, implementation is challenging; (b) potential damage to the reputation of companies is a much more effective means for enforcing the measures provided for in the law than fines; (c) the authorities implementing the Law disagree how to measure the success of implementation of the Law on the Protection of Whistleblowers.

5. Relationship between the Law on the Protection of Whistleblowers, the Labour Code and the Law on Civil Service in establishing a mechanism for the legal protection of whistleblowers

The most important issue in practice is how the different legal acts work together and how the interests of whistleblowers (and others) can and are actually protected. It is already known from the first report that two legal acts are relevant in this case: the Law on the Protection of Whistleblowers and the Labour Code, [16] and, as regards the civil service, the Law on the Protection of Whistleblowers and the Law on Civil Service. [17] It should be noted that the Law on Civil Service does not contain any legal provisions that regulate similar whistleblower protection relations, let alone additional or intersecting legal provisions. At least in this respect, the regulation of the requirement for the protection of whistleblowers in civil service relationships is at least partially simplified – the Law on the Protection of Whistleblowers is directly applicable to these subjects. The field of employment relations is somewhat different. Firstly, the concept of adverse impact. The Labour Code has only one general rule concerning the protection of whistleblowers – Article 31 of the Labour Code provides that notification of a state or municipal institution or establishment about violations of labour or other legal provisions committed by the employer, furnishing of information about a violation in accordance with the procedure laid down by the Law on the Protection of Whistleblowers, or application to a relevant labour dispute resolution body regarding the defence of violated rights or interests may not be considered actions that infringe upon the material or non-material interests of the employer. An employee may not be persecuted as a result or subjected to measures prejudicial to his interests. The content of this provision shows that it has a broader scope of application: the employee is protected against harassment by the employer not only when the employee has the status of a whistleblower (directly covered by the whistleblower protection), but also in other cases, e.g. in the case of contacting a state authority concerning potential violations by the employer (e.g. the State Labour Inspectorate) or in the case of initiating an individual labour dispute. It should be noted that the Labour Code does not mention which “measures prejudicial to the employee’s interests” are prohibited. This is where more clarity is brought by the Law on the Protection of Whistleblowers. Its Article 11 explicitly establishes a [continua ..]

6. Relevant case law

In Lithuania, so far only once has a court ruled in relation to adverse actions against a whistleblower. The Supreme Administrative Court dealt with a case concerning official penalties and dismissal from work of a former civil servant (head of an institution). [18] The civil servant claimed that the Minister who had recruited her imposed a penalty (reprimanded for misconduct) on 9 April 2021 and dismissed her from office by another order of that same date (following the discovery of objective circumstances that six months earlier she had submitted false information about the length of her employment in a managerial position in a public competition for the post) because she had been in conflict with him. The case file shows that the civil servant had contacted the General Prosecutor’s Office on two occasions in January 2021 concerning potential violations of law in the ministry headed by the Minister, to which the public institution she managed was subordinate, and had been granted whistleblower’s status by the Prosecutor’s Office twice (on 11 January and 26 February). Thus, the civil servant clearly regarded the Minister’s orders as adverse actions against her as a whistleblower. The Prosecutor’s Office that participated in the proceedings with the rights of a third party confirmed that it had received a request from the civil servant in her capacity as a whistleblower concerning the adverse actions and that the Prosecutor’s Office had contacted the Minister on that basis, informing him that instruments for the protection of whistleblowers applied to the civil servant. On the other hand, the Prosecutor’s Office explained to the Minister that the granting of the whistleblower’s status did not imply that the employer was restricted in its employer’s rights and legitimate possibilities of exercising the employer’s functions in relation to the employee, provided that the employer would be able prove in the event of a dispute that the actioned were not taken as a result of the information provided. The court of first instance did not, in principle, deal with the issue of adverse actions in the context of the dispute and only analysed the lawfulness of the disciplinary penalty and the dismissal from work. Therefore, even in theory, the employer (the Minister) was not obliged to provide evidence in relation to the violation of the rights of the civil servant as a whistleblower. The court of appeal [continua ..]

7. Conclusions

A discussion of just a few regulatory and practical aspects of whistleblower protection allows identifying relevant issues of legal regulation and practical implementation. The main one is the lack of proper harmonisation between the provisions of the Law on the Protection of Whistleblowers and the Labour Code and the absence of specific references in both legal acts to help determine how the mechanism of legal remedies is to be applied in reality. Why it is considered that clearer references and regulation would be necessary in the Labour Code. Lithuanian labour law has been codified and all the most important situations are, in principle, regulated (or accurate references are stated) in the Labour Code, which is at least more familiar to Lithuanian employee. Therefore, the legislator’s choice to regulate all legal relations for the protection of whistleblowers (even those directly related to the employment relations) by a specific legal act – a separate law – can be criticised. We are not, by any means, talking about the need to duplicate two or more legal acts or to replicate their norms. However, the need for legal certainty and real protection of employee’ rights calls for a clearer regulation of whistleblower safeguards or for appropriate references in the Labour Code in particular.

NOTE