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The Pan-European General Principles on the Status of Public Officials and Civil Servants
(compiled by Ulrich Stelkens)
I. Scope of the Pan-European General Principles on the Status of Public Officials
II. Functions of Public Officials in General
III. Status of Public Officials
IV. Public Officials as Whistleblowers
I. Scope of the Pan-European General Principles on the Status of Public Officials
3. Approach of Article 2 (a) of the United Nations Convention against Corruption
4. Combined approach focusing on persons holding an administrative office
1. Approach of Recommendation CM/Rec(2000)6 of the Committee of Ministers to member states on the status of public officials in Europe
Introduction of the Appendix of Recommendation CM/Rec(2000)6 on the status of public officials in Europe:
"For the purposes of this Recommendation, public officials are any members of staff, whether statutory or contractual, employed by state authorities or departments whose salary is paid out of the state budget, excluding elected representatives and certain categories of staff in so far as they come under special regulations".
Explanatory Memorandum (reproduced in CoE (ed.), The status of public officials in Europe - Recommendation R (2000) 6 and explanatory memorandum (2000), pp. 11 ff.):
"The project group [...] limited the scope of the term "public officials" to state employees, including all officials whose salary is paid by the state irrespective of the legal relationship between the employee and the state and their place of work, as well as public officials for state agencies. The project group therefore excluded all emplpoyees of self-governing local and regional authorities. Yet, some principles therein could be applied mutadis mutandis to the latter. It also wished to exclude, at state level, categories of staff covered by special regulations (depending on the particular country, these may include the military, police judiciary, members of certain independent boards etc.). Nevertheless, it did not mean to imply that legislation applying to these catgories should not take into account the principles laid down for state officials. With regard to local and regional authority staff, it took into account the work of the Steering Committee in Local and Regional Democracy (CDLR) which has prepared a set of guidelines for drawing up legislation on the status and working conditions of local and regional authority staff. Finally, it excluded elected representatives, as was to be expected. The recommendation therefore concerns all public officials linked to the state either by the law itself (so-called "statuary staff" or civil servants) or by a private or public law contract (known as "contractual" staff or employees)."
2. Approach of Recommendation Rec(2000)10 of the Committee of Ministers to member states on codes of conduct for public officials
"Appendix to Recommendation No. R (2000) 10
Model code of conduct for public officials
Interpretation and application
Article 1
(1) This Code applies to all public officials.
(2) For the purpose of this Code "public official" means a person employed by a public authority.
(3) The provisions of this Code may also be applied to persons employed by private organisations performing public services.
(4) The provisions of this Code do not apply to publicly elected representatives, members of the government and holders of judicial office."
"Public officials
Given the variety of tasks undertaken by a modern public administration, with staff from different backgrounds and from non-homogenous social groups, the need to codify rules of conduct is now greater than in the past, when a more homogenous staff carried out similar activities and shared similar values.
The specific statutes of the civil service need to be taken into account when codes of conduct are considered, in particular when the codes are to be used, inter alia, as a means of combating corruption. Public service requires integrity from public officials. They are not only in the service of the government, taken in a narrow sense, but should also carry out their duties as a service to society at large. The responsibilities of the public official are therefore to a certain extent different from those of an employee in the private sector.
Special consideration needs to be given to the senior civil service and to members of the government who may be at the same time elected representatives. These categories may require special rules.
It should be noted, however, that a code of conduct cannot replace a statutory law on the status of public officials.
Elected representatives
Elected representatives are usually responsible to their electorate and/or to their party. At the same time, the public interest requires from them accountability, transparency and integrity. Tradition plays a great role in the evolution of the situation in member states. In the context of combating corruption, special attention needs to be given to questions of immunity, relations with the party, sanctions and conflicts of interest. Changes to the current situation require careful consideration.
Other persons
Codes of conduct differ depending on which category of persons is addressed. The aims of codes for judges or prosecutors necessarily differ from those drafted for auditors or private business. As the aims and legal situation differ, so do the sanctions which may apply in a particular case."
3. Approach of Article 2 (a) of the United Nations Convention against Corruption
The United Nations Convention against Corruption has been signed and ratified by all CoE Member States and the EU. This Convention therefore does not "only" reflect global standards in the fight against corruption, but is a legally binding instrument in the entire "European administrative area" (and can therefore also concretise the pan-European general principles of good administration).
"Article 2 - Use of Terms
For the purpose of this Convention:
(a) "Public official" shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a "public official" in the domestic law of a State Party. However, for the purpose of some specific measures contained in chapter II of this Convention, "public official" may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party
(b) [...]."
See on Article 2 (a) of the United Nations Convention against Corruption para. 21 ff. of the Legislative Guide for the Implementation of the United Nations Convention against Corruption and pp. 21 ff. of the Travaux Préparatoires; see, furthermore, C. Spoerl, 'Article 2: Use of Terms' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 21 - 34.
4. Combined approach focusing on persons holding an administrative office"Public official" means any person employed by a state, regional or local authority or department irrespective of the legal relationship between the employee and the authority and their place of work, excluding publicly elected representatives, members of the government and holders of judicial office but including members of the police and the military.
Because persons who are assigned to the police and the military (at least insofar as they perform administrative or police duties within the country) are also included here, the term "public official" is preferable to "civil servant" in the present context.
For the pan-European general principles on the status of judges click here.
II. Functions of Public Officials in General
ECtHR, judgement Ahmed and Others v. UK (22954/93) 2 September 1998:
"53.The Court observes that the local government system of the respondent State has long rested on a bond of trust between elected members and a permanent corps of local government officers who both advise them on policy and assume responsibility for the implementation of the policies adopted. That relationship of trust stems from the right of council members to expect that they are being assisted in their functions by officers who are politically neutral and whose loyalty is to the council as a whole. Members of the public also have a right to expect that the members whom they voted into office will discharge their mandate in accordance with the commitments they made during an electoral campaign and that the pursuit of that mandate will not founder on the political opposition of their members’ own advisers; it is also to be noted that members of the public are equally entitled to expect that in their own dealings with local government departments they will be advised by politically neutral officers who are detached from the political fray.
The aim pursued by the Regulations was to underpin that tradition and to ensure that the effectiveness of the system of local political democracy was not diminished through the corrosion of the political neutrality of certain categories of officers.
54. For the above reasons, the Court concludes that the interferences which resulted from the application of the Regulations to the applicants pursued a legitimate aim within the meaning of paragraph 2 of Article 10, namely to protect the rights of others, council members and the electorate alike, to effective political democracy at the local level."
ECtHR [GC], judgment Guja v. Moldowa (14277/04) 12 Feburary 2008:
"71. Since the mission of civil servants in a democratic society is to assist the government in discharging its functions and since the public has a right to expect that they will help and not hinder the democratically elected government, the duty of loyalty and reserve assumes special significance for them [...]. In addition, in view of the very nature of their position, civil servants often have access to information which the government, for various legitimate reasons, may have an interest in keeping confidential or secret. Therefore, the duty of discretion owed by civil servants will also generally be a strong one."
"136. The Court reiterates that it accepts the Government’s submission that the prohibition on strikes by civil servants as combined with several complementary, legally enforceable fundamental rights [...] pursues the overall aim of providing for good administration. This reciprocal system of interrelated rights and duties [...] guarantees the effective performance of functions delegated to the civil service and thereby ensures the protection of the population, the provision of services of general interest and the protection of the rights enshrined in the Convention through effective public administration in manifold situations [...]. In this connection, the Court observes, more generally, that restrictions on the right to strike may serve to protect the rights of others, which are not limited to those on the employer’s side in an industrial dispute, and may serve to fulfil a Contracting State’s positive obligations under its constitutional law, the Convention and other human rights treaties [...]."
3. Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe
5. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
Introduction of the Appendix of Recommendation CM/Rec(2000)6:
"For the purposes of this Recommendation, public officials are any members of staff, whether statutory or contractual, employed by state authorities or departments whose salary is paid out of the state budget, excluding elected representatives and certain categories of staff in so far as they come under special regulations.
The systems governing public officials in Europe lie between two models that can be generally defined as contractual and career system. In the former, public officials are under a contract where conditions apply which are more or less similar to those of employees in the private sector. In the latter system, public officials are subject to a specific status defined by law or regulation.
The choice of system depends on the specific circumstances of each country. Yet, it is important to ensure that, whatever the system, a number of essential principles of good practice, which follow hereafter, are respected, as these principles constitute the very basis of an efficient and citizen-oriented civil service."
In the following, the principles of Recommendation CM/Rec(2000)6 deal, inter alia, with conditions and requirement for recruitments (no. 4), recruitment procedures (no. 5), transfer (no. 6), promotion (no. 7), social protection (no. 11), remuneration (no. 12), duties (no. 13) and disciplinary responsibility (no. 14), training (no. 15), termination (no. 16) and judicial protection (no. 17)..
The genesis of Recommendation CM/Rec(2000)6 is explained in the Explanatory Memorandum (reproduced in CoE (ed.), The status of public officials in Europe - Recommendation R (2000) 6 and explanatory memorandum (2000), pp. 11 ff.); click here for further information on the genesis of Recommendation CM/Rec(2000)6
2. Recommendation Rec(2000)10 of the Committee of Ministers to member states on codes of conduct for public officials"Article 3 - Object of the Code. The purpose of this Code is to specify the standards of integrity and conduct to be observed by public officials, to help them meet those standards and to inform the public of the conduct it is entitled to expect of public officials."
For the purpose of codes of conduct see the Explanatory Memorandum to this recommendation:
"Codes of conduct should be clear and concise statements of the guiding principles of conduct which an organisation expects of its members and the values for which it stands.
The purpose of a code of conduct for public servants is threefold:
– it is a statement of the ethical climate that prevails in the public service;
– it spells out the standards of conduct expected of public servants;
– it tells members of the public what to expect of public servants in conduct and attitude when dealing with them.
It is both a public document and a message addressed to every individual public servant. It cannot be assumed that a public servant knows what standards of conduct are expected of him if he has never been told what they are. Reliance on some unwritten process of absorption of standards in the working environment is haphazard and insufficient. If the public servant is to be called to account for his conduct, it is essential that he should have been informed of what was expected of him and that he should know in what respects his conduct has fallen short of those expectations. A clear, concise and accessible written statement of the standards by which his working life is to be conducted is a basic requirement."
3. Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe
"1. Mindful of the Council of Europe’s particular role in Europe’s new institutional architecture and the Laeken Declaration of December 2001 calling for greater democracy, transparency and efficiency on the part of European institutions, the Parliamentary Assembly asks the European Union’s Convention on the Future of Europe to include an article laying down fundamental principles for European and national public officials, such as universal and fair access to such functions, equal opportunities for women, integrity, loyalty, objectivity and probity – in consideration of the fact that a high-quality civil service is a vital precondition for strong democracy and the rule of law.
[...].
6. The Assembly considers it necessary to develop, where necessary, a clearer demarcation between the political sphere and public administration, for the purpose of ensuring the independence of national public officials and defining better their tasks and responsibilities.
7. Member states should increase the financial resources devoted to the professional training of officials at national, European and international level in order to ensure that they possess the skills needed to perform their functions. National civil services should actively recruit in institutions of higher education to attract talented people for employment.
8. Finally, the Assembly recommends that the Committee of Ministers asks Council of Europe member states to shape their civil service legislation in such a way as to facilitate exchanges between the public and the private sector of, in particular, highly talented and internationally experienced staff."
"7. The Committee of Ministers would also like to recall the work being carried out by the Steering Committee on Local and Regional Democracy (CDLR) on public ethics at local and regional level. The draft handbook on Public Ethics at local and regional level is currently the subject of national consultations in member states and will be the centrepiece of an international conference in Spring 2004 organised under the Dutch Chairmanship of the Committee of Ministers. This handbook is also intended to offer guidance on how to enhance ethical standards and behaviour in local and regional administrations.
8. Effectiveness, integrity, competence and accountability of civil servants depend on the quality of the legal and regulatory framework regulating the civil service. With this objective in mind, the Committee of Ministers has adopted Recommendation No. R(2000)6 on the status of public officials in Europe.
9. In addition, the Project Group on Administrative Law (CJ-DA) under the aegis of the European Committee on Legal Co-operation (CDCJ) prepared the Report “The status of public officials in Europe”, published in 1999, and the Handbook “The Administration and You”, published in 1996, dealing also with civil service issues.
10. Civil service systems of different European countries are based on many aspects unique to the countries concerned such as legal traditions, history and culture as well as the social, economic and political conditions. Nevertheless, the different systems in Europe have also many common elements and values that have been consolidated in the above-mentioned instruments. These instruments thus lay down the main principles in the field of civil service that should be developed by the domestic legislation of the member states.
11. It is also worth mentioning the activities of bilateral assistance in the field of the reform of civil service in several member states such as Armenia, Bulgaria, Moldova, Russian Federation and "the former Yugoslav Republic of Macedonia", as well as the multilateral conference that will be organised in Warsaw on “The Right to a Good Administration”, on 4-5 December 2003.
12.The work of the Multidisciplinary Group on Corruption (GMC) under the joint responsibility of the European Committee on Crime Problems (CDPC) and the European Committee on Legal Co-operation (CDCJ) resulted in the adoption of Recommendation No. R(2000)10 on codes of conduct for public officials.
13. The rules relating to the rights and duties of public officials should take into account the requirements of the fight against corruption and provide for appropriate and effective disciplinary measures, and to promote further specification of the behaviour expected from public officials. This recommendation therefore invites the member states to promote, subject to national law and principles of public administration, the adoption of national codes of conduct for public officials based on the model code of conduct for public officials appended to the recommendation.
14. Finally, civil service reform in Europe is going to be the subject of the next UniDem Campus seminar organised by the Venice Commission (November 2003)."
4. Public officials and Guiding Principle 10 of Resolution 97(24) of the Committee of Ministers of the Council of Europe on the twenty guiding principles for the fight against corruption
"The Committee of Ministers [...]
Having received the draft 20 guiding principles for the fight against corruption, elaborated by the Multidisciplinary Group on Corruption (GMC);
Firmly resolved to fight corruption by joining the efforts of our countries,
agrees to adopt the 20 guiding principles for the fight agains corruption set out below:
1. [...]
10. to ensure that the rules relating to the rights and duties of public officials take into account the requirements of the fight against corruption and provide for appropriate and effective disciplinary measures; promote further specification of the behaviour expected from public officials by appropriate means, such as codes of conduct;
[...]."
Resolution 97(24) was prepared by CoE's 'Multidisciplinary Group on Corruption (GMC)' (cf. GMC's Activity Report (1994-2000) (CM(2000)158) 27 October 2000).
5. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
"F. Examples of particular challenges to the Rule of Law
[...].
1. Corruption139 and conflict of interests
a. Preventive Measures
What are the preventive measures taken against corruption?
i. In the exercise of public duties, are specific rules of conduct applicable to public officials? Do these rules take into account:
(1) the promotion of integrity in public life by means of general duties (impartiality and neutrality etc.);
(2) restrictions on gifts and other benefits;
(3) safeguards with respect to the use of public resources and information which is not meant to be public;
(4) regulations on contacts with third parties and persons seeking to influence a public decision including governmental and parliamentary work?
ii. Are there rules aimed at preventing conflicts of interest in decision-making by public officals, e.g. by requiring disclosure of any conflicts in advance?
iii. Are all categories of public officials covered by the above measures, e.g. civil servants, elected or appointed senior officials at State and local levels, judges and other holders of judicial functions, prosecutors etc. ?
iv. Are certain categories of public officials subject to a system of disclosure of income, assets and interests, or to further requirements at the beginning and the end of a public office or mandate e.g. specific integrity requirements for appointment, professional disqualifications, post-employment restrictions (to limit revolving doors or so-called “pantouflage”)?
v. Have specific preventative measures been taken in specific sectors which are exposed to high risks of corruption, e.g. to ensure an adequate level of transparency and supervision over public tenders, and the financing of political parties and election campaigns?
b. criminal law measures
[...].
c. Effective compliance with, and implementation of preventive and repressive measures
How is effective compliance with the above measures ensured?
i. [...].
ii. [...].
iii. Are effective, proportionate and dissuasive criminal and administrative sanctions provided for corruption-related acts and non-compliance with preventive mechanisms?
iii. [...].
115. Corruption leads to arbitrariness and abuse of powers since decisions will not be made in line with the law, which will lead to decisions being arbitrary in nature. Moreover, corruption may offend equal application of the law: it therefore undermines the very foundations of the Rule of Law. Although all three branches of powers are concerned, corruption is a particular concern for the judiciary, prosecutorial and law enforcement bodies, which play an instrumental role in safeguarding the effectiveness of anti-corruption efforts. Preventing and sanctioning corruption-related acts are important elements of anti-corruption measures, which are addressed in a variety of international conventions and other instruments.142
116. Preventing conflicts of interest is an important element of the fight against corruption. A conflict of interest may arise where a public official has a private interest (which may involve a third person, e.g. a relative or spouse) liable to influence, or appearing to influence, the impartial and objective performance of his or her official duties.143 The issue of conflicts of interest is addressed in international conventions and soft law.144 [...]."
Footnote 139: On the issue of corruption, see Group of States Against Corruption (GRECO), Immunities of public officials as possible obstacles in the fight against corruption, in Lessons learned from the three Evaluation Rounds (2000-2010) - Thematic Articles.
Footnote 142: See for example the United Nations Convention against Corruption; Criminal Law Convention on Corruption (CETS 173); Civil Law Convention on Corruption (CETS 174); Additional Protocol to the Criminal Law Convention on Corruption (CETS 191); CM/Rec(2000)10 on codes of conduct for public officials; CM/Res (97) 24 on the twenty guiding principles for the fight against corruption.
Footnote 143: CM/Rec(2000)10 on codes of conduct for public officials, Article 13.
Footnote 144: United Nations Convention against Corruption, in particular Article 8.5; CM/Rec(2000)10, Appendix - Model code of conduct for public officials, Articles 13ff; cf. CM/Res (97) 24 on the twenty guiding principles for the fight against corruption.
6. Article 7 and 8 of the United Nations Convention against Corruption as a "Transmission Belt" for the CoE Work on the Status of Public Officials
The United Nations Convention against Corruption has been signed and ratified by all CoE Member States and the EU. This Convention therefore does not "only" reflect global standards in the fight against corruption, but is a legally binding instrument in the entire "European administrative area" (and can therefore also concretise the pan-European general principles of good administration).
As part of Chapter II on 'Preventive measures' Article 7 and 8 of the United Nations Convention against Corruption stipulate:
"Article 7. Public sector
1. Each State Party shall, where appropriate and in accordance with the fundamental principles of its legal system, endeavour to adopt, maintain and strengthen systems for the recruitment, hiring, retention, promotion and retirement of civil servants and, where appropriate, other non-elected public officials:
(a) That are based on principles of efficiency, transparency and objective criteria such as merit, equity and aptitude;
(b) That include adequate procedures for the selection and training of individuals for public positions considered especially vulnerable to corruption and the rotation, where appropriate, of such individuals to other positions;
(c) That promote adequate remuneration and equitable pay scales, taking into account the level of economic development of the State Party;
(d) That promote education and training programmes to enable them to meet the requirements for the correct, honourable and proper performance of public functions and that provide them with specialized and appropriate training to enhance their awareness of the risks of corruption inherent in the performance of their functions. Such programmes may make reference to codes or standards of conduct in applicable areas.
2. Each State Party shall also consider adopting appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to prescribe criteria concerning candidature for and election to public office.
3. Each State Party shall also consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.
4. Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.Article 8. Codes of conduct for public officials
1. In order to fight corruption, each State Party shall promote, inter alia, integrity, honesty and responsibility among its public officials, in accordance with the fundamental principles of its legal system.
2. In particular, each State Party shall endeavour to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable and proper performance of public functions.
3. For the purposes of implementing the provisions of this article, each State Party shall, where appropriate and in accordance with the fundamental principles of its legal system, take note of the relevant initiatives of regional, interregional and multilateral organizations, such as the International Code of Conduct for Public Officials contained in the annex to General Assembly resolution 51/59 of 12 December 1996.
4. Each State Party shall also consider, in accordance with the fundamental principles of its domestic law, establishing measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions.
5. Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.
6. Each State Party shall consider taking, in accordance with the fundamental principles of its domestic law, disciplinary or other measures against public officials who violate the codes or standards established in accordance with this article."
See on Article 7 and 8 of the United Nations Convention against Corruption para. 69 ff. of the Legislative Guide for the Implementation of the United Nations Convention against Corruption and pp. 85 ff. and pp. 95 ff. of the Travaux Préparatoires; see, furthermore, J. Bacio Terracino, 'Article 7: Public Sector' and 'Article 8: Codes of Conduct for Public Officials' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 65 - 90.
IV. Public Officials as Whistleblowers
1. Recommendation CM/Rec(2014)7 of the Committee of Ministers to member states on the protection of whistleblowersSee the Explanatory Memorandum
In its recent case law, the ECtHR has referred to Recommendation CM/Rec(2014)7 and its Explanatory memorandum as an apparently well-drafted concretisation of the State's obligations to protect whistleblowers under Article 10 ECHR: ECtHR, judgment Gawlik v. Liechtenstein (23922/19) 16 Feburary 2021 at [39], [76] and [82]; ECtHR [GC], judgement Halet v. Luxembourg (21884/18) 14 Feburary 2023 at [57], [119], [123] and [125].
ECtHR [GC] judgment Guja v. Moldowa (14277/04) 12 Feburary 2008:
"72. [...] the Court notes that a civil servant, in the course of his work, may become aware of in-house information, including secret information, whose divulgation or publication corresponds to a strong public interest. The Court thus considers that the signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large. In this context, the Court has had regard to the following statement from the Explanatory Report to the Council of Europe’s Civil Law Convention on Corruption (see paragraph 46 above): “In practice corruption cases are difficult to detect and investigate and employees or colleagues (whether public or private) of the persons involved are often the first persons who find out or suspect that something is wrong."
ECtHR, judgment Gawlik v. Liechtenstein (23922/19) 16 Feburary 2021:
"65. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large [...]. The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion [...]."
ECtHR [GC], judgement Halet v Luxembourg (21884/18) 14 Feburary 2023:
"111. When considering disputes involving freedom of expression in the context of professional relationships, the Court has found that the protection of Article 10 of the Convention extends to the workplace in general [...]. It has also pointed out that this Article is not only binding in the relations between an employer and an employee when those relations are governed by public law but may also apply when they are governed by private law [...]. Indeed, genuine and effective exercise of freedom of expression does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In certain cases, the State has a positive obligation to protect the right to freedom of expression, even against interference by private persons [...].
112. Protection of freedom of expression in the workplace thus constitutes a consistent and well-established approach in the case-law of the Court, which has gradually identified a requirement of special protection that, subject to certain conditions, ought to be available to civil servants or employees who, in breach of the rules applicable to them, disclose confidential information obtained in their workplace. Thus, a body of case-law has been developed which protects “whistle-blowers”, although the Court has not specifically used this terminology. In the Guja judgment (cited above), the Court identified for the first time the review criteria for assessing whether and to what extent an individual (in the given case, a public official) divulging confidential information obtained in his or her workplace could rely on the protection of Article 10 of the Convention. It also specified the circumstances in which the sanctions imposed in response to such disclosures could interfere with the right to freedom of expression and amount to a violation of Article 10 of the Convention."