When Security Overrides Transparency: The National Security Clause in Whistleblower Protection (Polish and EU Perspective)

Abstract This article examines how the undefined concept of “national security” in both the EU Whistleblower Protection Directive and the Polish Whistleblower Protection Act complicates the application of whistleblower safeguards. It highlights the practical challenges authorities face in determining when the national security exclusion applies, and calls for clear criteria and procedures to balance transparency and whistleblower protection with legitimate national interests. The article argues that the vague nature of this exception in both EU and Polish laws generates legal uncertainty and may enable Member States to circumvent whistleblower protections without adequate justification. The Polish Whistleblower Protection Act excludes disclosures related to national security, particularly those that would violate legal confidentiality. Court of Justice of the European Union jurisprudence, however, requires that such exclusions be grounded in a concrete threat to fundamental state interests. This creates a significant interpretive burden for administrative and judicial authorities, undermining legal certainty and consistent application of the law.