Whistleblowing - a Mechanism for Collecting Data on Non-Compliance with the Principles of Administrative Law in Order to Mitigate Risks

• Author: Emil Balan - Iulia Cospanaru
• Position: Professor, PhD, National University of Political Studies and Public Administration, Faculty of Public Administration, Bucharest, Romania - National University of Political Studies and Public Administration, Faculty of Public Administration, Bucharest, Romania
• Pages: 5-23

JURIDICA

5

Public Law

Whistleblowing – a Mechanism for

Collecting Data on Non-Compliance with

the Principles of Administrative Law in

Order to Mitigate Risks

Emil BALAN

1

, Iulia COSPANARU

2

Abstract: Clear, consistent and predictable rules applicable to the admini strative activities of the EU

institutions, as well as deepening the EU integration are crucial in order to create a European

administrative space. Building on the need to achieving this goal, th e paper analyses th e object, the

procedure applicable, the legal regime and the safeguards granted to whistleblowers, as well as the

role of the whistleblowing as a preventive or risk mitigation mechanism for those situations in which

non-compliance with the principles of administrative law may affect the validity o f documents, the

performance o f the legal competencies of the institution or citizens` rights. It raises awareness on

risks and costs of non-compliance with the principles of the administrative law and good

administration standards, as well as o n the vulnerabilities and effects it can generate. The document

also places whistleblowing in th e context of control mechanism available for verifying the

compliance of concrete administrative activities with these principles, as a solution to identify and

retrieve b reaches from within the institution. To draw conclusions, this paper builds on the above

analysis and the current Romanian good practice in the field, and frames a series of recommendations

for improving the procedure applicable to whistleblowing.

Keywords: public interest; administration; whistleblowing; good administration; risk mitigation

1. Whistleblowing – an International Perspective

Over the constitutional history of nations that have built the contemporary society

there are three development periods the governance passes through. In the current

period the sovereign people initiates the development of the administration under

1

Professor, PhD, National University of Political Studies and Public Administration, Faculty of

Public Administration, Bucharest, Romania, Address: 6 Povernei Street, Sector 1, Bucharest,

Romania, Tel.: +4021.318.08.97, Fax: +4021.312.25.35, Corresponding author:

emilbalan2014@gmail.com.

2

National University of Political Studies and Public Administration, Faculty o f Public

Administration, Bucharest, Romania, Address: 6 P overnei Street, Sector 1, Bucharest, Romania, Tel.:

+4021.318.08.97, Fax: +4021.312.25.35, E-mail: iulia_cospanaru@yahoo.com.

AUDJ, vol. 13, no. 1/2017, pp. 5-23

ACTA UNIVERSITATIS DANUBIUS Vol. 13, no. 1/2017

6

the rule of the new constitution that brought it to power (Wilson, 1887). In this

paradigm, the rulers assume the role of officials in the service of the sovereign

people and take all necessary efforts to meet people's needs. That is why consulting

or participation of the people in the administration becomes one of the guiding

principles of modern administrations.

Built on this paradigm, the US administration is the one that offered the widest

space for citizen participation in decision making processes, not just as a form of

control over the administration, but also as a form of capitalizing their knowledge

in the governance process. In this context, protecting the public interest has

acquired since the beginning meanings enhanced by the understanding of the need

for protecting the general interests of citizens both on the smooth running of the

administration in general, and also on the judicious use of public resources

generated by the citizens themselves.

Thereby in the Code of US Federal Regulations - the equivalent of an

administrative code - in Chapter 5, dedicated to the administrative staff, it is for the

first time that a bill prohibits the sanctioning of a federal official if he/she reports a

fact about which has data that reasonably suggest a law violation, a misuse of

public resources or any abuse (Section 2302, (b) (8), of Chapter 5).

In the European law, the first such law appeared in 1994 in the Anglo-Saxon space,

when the Great Britain adopted its own law to protect whistleblowers

(Whistleblowers Protection Act). The whistleblower is referred to as a person who

makes a complaint about an action contrary to the law, maladministration,

negligence or misconduct affecting the public or that may represent a danger for

the public health and safety, or to the environment (Part I, Section 2 of the Act

Object, art. 3).

Within the French zone there are currently more law-like regulations dealing with

pieces of whistleblowers protection, but none of them is comprehensive. One such

project is being currently in the process of adoption.

Globally, the oldest regulatory dedicated to the whistleblower's protection dates

back from 1982, when it was adopted, under the UN aegis, the Termination of

Employment Convention, which entered into force in 1985. Among the grounds for

unjustified termination of the labor contract, the Convention also includes one

related to “the filing of a complaint or the participation in proceedings against an

employer involving alleged violation of laws or regulations or recourse to

competent administrative authorities” (Art 5 c)).

Later on, the Civil Law Convention on Corruption regulates in its Article No. 9 the

Member State obligation to “provide in its internal law for appropriate protection