The Long Road, Part I - The European Legislative Process

There were two and a half years between the enactment of the Whistleblower Directive (EU) 2019/1937 and the new draft law on whistleblower protection. Many small steps are and were necessary for this at both European and national level. Since the European Union is increasingly acting as a standard-setter, it is worthwhile to take a look at the entire legislative process of the European Union on the basis of the whistleblower law.

Der lange Weg im Gesetzgebungsverfahren

The competence

A distinction must be made between the legislation of the European Union and the legislation in the Member States, i.e. also in Germany. The European Union is authorized by the Treaty on the Functioning of the European Union (TFEU) to adopt certain legal acts. In certain areas, such as the customs union, only the European Union may issue standards. In other areas, the Union may adopt laws only if a legislative objective can be better achieved at the Union level than at the level of the Member States.

The right of proposal

Every legislative process begins with someone making a proposal about a law. Bodies and persons who are allowed to make a proposal are referred to as having the right of initiative.

At the European level, only the European Commission has the right of initiative. Its members are nominated by the member states and elected by the European Parliament. Their equivalents at the level of the member states are regularly the governments. If the Commission does not propose legislation in an area, the other institutions involved in the legislative process or the citizens of the Union can call upon it to do so.

The Commission has the choice between two different forms of a legal act: the regulation and the directive. A regulation, once adopted, is directly applicable to all Member States and Union citizens. A directive, on the other hand, formulates certain requirements that Member States must transpose into their own law. For example, under the Whistleblower Directive, Member States must enact legislation that, among other things, requires companies with 50 or more employees to establish internal whistleblowing units.

Sometimes a directive allows certain deviations from its requirements. Often, member states are allowed to take measures beyond the directive to meet the directive's objective. These directives are called minimum harmonizing because the Union thus achieves at least a minimum level of protection in its member states. The Whistleblower Directive allows member states to extend whistleblower protection. Thus, under the new draft law, they are protected not only when they report violations of Union law, but also when they report a variety of other violations of national law.

The vote

So now the Commission has hypothetically proposed a regulation or directive. The further course of action depends on the type of procedure. In the vast majority of cases, this is the so-called ordinary legislative procedure. It is also called the co-decision procedure, because the European Parliament has the opportunity to help shape the legislative proposal.

The Commission forwards its proposal to the European Parliament and the Council of the European Union. The latter consists of the respective ministers of the member states. The Parliament then votes on the proposal at first reading and forwards the result to the Council of Ministers. It can also propose amendments to the Commission's draft. The Council of Ministers then also votes on the draft, including the amendments made by the Parliament.

If the Council rejects the Parliament's proposal, there is a second reading. In this second reading, the European Parliament again votes on the proposals of the Council of Ministers. If it approves them, the act is deemed to have been adopted. If it refuses, the legislative process remains inconclusive. If it proposes further amendments, it must again forward them to the Council of Ministers and the European Commission.

If the Commission rejects the resulting proposal, the Council of Ministers may unanimously override this veto. If, on the other hand, the Council of Ministers rejects the amendments, the Conciliation Committee is convened as a special body. This committee is to reach an agreement in a special procedure in cooperation with the Parliament, the Council of Ministers and the Commission.

The path of the Whistleblower Directive was not that long at the European level. Already in the first reading, the European Parliament adopted the proposal with 591 votes in favor, 29 against and 33 abstentions. The Commission's plan was also approved in the Council of Ministers.


Once a legal act has successfully passed through the European legislative process, it must finally be published. This is always done in the Official Journal of the European Union. Often, a legal act itself determines when it enters into force. Otherwise, it takes effect 20 days after publication.

The European legislative process is largely determined by the institutional triangle of the Commission, Parliament and Council of Ministers. Since the European requirements on whistleblowing law were issued in the form of a directive, they must also pass through a German legislative procedure. This will be examined in more detail in Part II of this series of articles.


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