By Pernille Boye Koch, LL.M, Ph.D., Research Director, The Danish Institute for Human Rights, and Michael Gøtze, Professor in Administrative Law, Faculty of Law, University of Copenhagen.

In Denmark it can to a wide extent be argued that the Corona crisis was handled with care and focus by a strong one-party government assisted by an efficient administration. Nevertheless, one of the most debated “scandal cases” also has its origin in the Corona context. The case challenges fundamental legal perceptions of rule of law and the main actors in the cases were – apart from the Danish prime minster – the Danish civil service carrying out political decisions. The case calls for reflections of how to assess the role of the civil service in a legal context.

The Mink-case is a highly exposed case in Denmark, maybe the most exposed administrative scandal ever. In November 2020, the Danish government decided that all mink in Denmark should be culled after a mutated form of coronavirus that can spread to humans was found on a substantial number of mink farms. The decision was based on a concern that the mutated virus could pose a risk to the effectiveness of a future Covid-19 vaccine. However, the mink farmers were – both informally by broad press statements and formally by the assisting police - told to kill their animals even though the government did not have a legal basis for this drastic measure. The civil service that were involved in the process were in a hurry and the focus on legal requirements were secondary, at best. The minority government acted in anticipation of an act, but the act did not actually exist yet.

The Mink case resulted in the dismissal of the Minister for Food, Agriculture and Fisheries, and an independent commission of Inquiry was established to scrutinize the course of events and to assess who is to be held responsible – in particular within the Danish civil service - for these unlawful actions. The investigation and assessment are now over and one of the pivotal questions is: where does this leave the civil service?

In this paper we will look into this question within a framework of fundamental questions of rule of law, separation of powers, good administration in a time, where the Danish central government has been under heavy pressure due to the pandemics, while the state administration is at the same time affected by centralization and politicization. Danish civil service is at a crossroad. A number of legal concepts – within administrative law, employment law and constitutional law – need to address the conflict between the ideal of neutrality of the civil service and the reality of a civil service with strong political ears.

The deadline for Member States to transpose the Directive (EU) 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law (the “Whistleblower Protection Directive”) was 17 December 2021. In January 2022 Belgium received from the European Commission a letter of formal notice for lack of transposition of this directive. Belgium wasn’t alone: at least 25 other member states received a similar letter of formal notice.

In 2022 the Belgian federal legislator as well as the Flemish legislator went into overdrive and the necessary legislative initiatives were finally taken. It resulted – in November and December 2022 – in two federal laws (one for the private sector and one for the public sector) and in the Flemish Decree of 18 November 2022 amending the Provincial Decree of 9 December 2005, the Decree of 22 December 2017 on local government and the Administrative Decree of 7 December 2018, as regards whistleblowers. In May 2023 a Flemish draft decree transposing the European whistleblower directive for education in the Flemish Community was submitted to the Flemish Parliament.

In this paper we will first describe the – at times slow and difficult – transposition process of the Whistleblower Protection Directive in Belgium and especially in Flanders and discuss in more detail the implementation of the new legislation and the problems (both legal and practical) that have arisen. Special focus will be on local government – for municipalities the new regulation came into force on 11 December 2022 (ten days after publication in the Belgian Official Gazette) and on educational institutions – a specific decree for the education sector is at the time of writing still being debated in parliament.

The importance of better protection for whistleblowers is not in dispute. However questions arise whether for public administrations – especially for smaller administrations - it is still possible to keep sight of the overall objective when confronted with yet another procedure requiring internal and external reporting channels. Although an effort has been made to use where possible existing channels and instances (ombudsman, Audit …) there is still – or perhaps as a result thereof - a perceived lack of clarity, especially with regard to how the ‘whistleblower’ procedure relates to other complaints systems, for example the procedure that apply within the ‘well-being at work’ legislation.

So, will these new procedures and the protections they offer be sufficiently clear to potential whistleblowers if it is maybe not so clear for the administrations themselves? And a last all-important question: will these new or amended regulations make civil servants in said administrations feel more secure and more willing to report on serious breaches of EU-Law?

This article studies the final stage of the policy cycle: the enforcement of European railway regulations within the national legal framework and administrative practices focusing on the Human Environment and Transport Inspectorate and the Consumer and Market Authority within the Dutch railway sector. The research objective is to reveal any de jure conundrums that occur between the European and national legal frameworks concerning railways as well as clarify how the authorities cope de facto with dilemmas that result from such legal conundrums during their enforcement activities. An academic focus on such national regulatory authorities in the railway sector, and particularly those of the Netherlands, has so far been absent despite the increasing body of European railway legislation, the recognised complexity of the legal field of transport and the convoluted implementation and enforcement strategies that have rendered the position of these authorities significant. Various legal examples, regarding provisions for the role of the infrastructure managers as administrator and the calculation tool for track access charges suggest that European legal railway instruments and the Dutch legal framework and practices occasionally contradict, resulting in dilemmas that authorities have to cope with during their supervisory and enforcement practices. Also, this article contributes to empirical legal research focusing on law in action by uncovering the mechanisms regulatory authorities apply to cope with contradicting legal provisions stemming from the EU and national framework and practices, the problem solving capabilities of the authorities and how complex legal provisions are put to practice. The focus is on the Dutch safety authority and market authority to give an integral overview of supervision and enforcement by these authorities in the Dutch railway sector but is limited to the implementation and enforcement of specific elements of the fourth European railway package including Directive 2016/797, 2016/798 and 2012/34/EU and their transposition into the Dutch legal framework. The central research question is: what are the legal conundrums the Dutch market authority and safety authority are de jure and de facto confronted with, pursuant to the transposition of EU Directive 2016/797, Directive 2016/798 and Directive 2012/34/EU by the Netherlands, and how they cope with the concomitant dilemmas. The present research applies a document analysis of the relevant European and national railway and administrative laws and case law as well as an empirical analysis based on semi-structured interviews. The respondents include legal experts from the field, officials of the relevant departments of the safety and market authorities and of relevant ministerial departments. The expert interviews are used to develop a picture of the case and context. Interviews with the staff members focus on the dilemmas the authorities de facto encounter and are used to identify which mechanisms are employed in practice to cope with this.

Recent years have brought major social changes, including growing dissatisfaction with democratic institutions and the emergence of so-called “illiberal democracies”. Globalisation, economic crisis, political conflicts, and security threats also contribute to malfunctioning of modern societies. Many countries experience backsliding from the rule of law, as well as growing populist and authoritarian tendencies.

Central and Eastern European countries already experienced authoritarianism in the past. In the turbulent mid-war period of 1920s and 1930s, as well as in the communist system enforced by the Soviet Union after the WW2, the regimes struggled to navigate the economic and social challenges by resorting to non-democratic measures. After the fall of the Iron Curtain, it seemed that the reestablished democracies will be successful and resilient, and that the rule of law should be strengthened by joining the EU. However, the democratic system of government, division of power and the rule of law soon became challenged by the populist and authoritarian tendencies.

Administrative law plays a very important role in these processes. Since its main function is to protect the individual against the abuse of state power, it can be surprising to discover that it is instrumentally used by the regimes in decaying democracies. By breaking the principles of the rule of law and weakening of the constitutional values, populist governments often misuse the instruments of administrative law to limit the citizens’ rights and liberties. This process is however not always evident, as this ‘prerogative state’ coexists with ‘normative state’, where legal forms of action may be used differently depending on the addressee.

Looking at the example of Poland, it is clear that the administrative measures can be effectively used both to protect and to oppress the citizens, depending on their loyalty towards the regime. This paper aims at showing at how the ‘dual state’ works in practice, focusing on the examples of misusing the administrative law in Poland since 2015. The most striking recent example being the new legislation from May 2023 to establish a commission to investigate Russian influence that could be used to block the candidacy of opposition politicians with only administrative measures and without due process.