Recital 24
Directive on the protection of persons who report breaches of Union law · UE 2019/1937
| (24) | National security remains the sole responsibility of each Member State. This Directive should not apply to reports of breaches related to procurement involving defence or security aspects where those are covered by Article 346 TFEU, in accordance with the case law of the Court. If Member States decide to extend the protection provided under this Directive to further areas or acts, which are not within its material scope, it should be possible for them to adopt specific provisions to protect essential interests of national security in that regard. |
In Luxembourg, the law of 16 May 2023 extended the scope beyond the European minimum and did not adopt specific national security exclusion provisions beyond the reference to Article 346 TFEU. The OFRS, the cross-cutting external authority, considers that in case of doubt the protection applies, and criminal sanctions range from EUR 1,250 to EUR 25,000 (doubled in case of recidivism) for obstruction of reporting or retaliation.
Luxgap practice: document in writing each exclusion invoked on national security grounds, with CJEU case-law reference and qualification of the public procurement concerned, to withstand an OFRS audit.
