This contribution, prepared by attorney Lucia Rapallo, was published in N&T Plus Diritto – Il Sole 24ORE
On December 17th last, the deadline expired for Italy to enact national legislation transposing EU Directive 2019/1937 on whistleblowing, namely the phenomenon of reporting unlawful conduct within a public organization and/or private business entity, notwithstanding the enabling law no. 53/2021, by virtue of which the Government was required to transpose, inter alia, the aforementioned directive by August 2021.
The delay of the Italian legislator, in addition to exposing our Country to the risk of being sanctioned by the EU, contributes to keeping Italy one step behind in the culture of legality.
Deriving from common law systems, the whistleblowing institution was initially introduced in Italy in the public sector, with Law no. 190/2012; however, it was with Law no. 179/2017 that a more comprehensive regulatory framework on whistleblowing was created, as a tool to combat corruption.
With the 2017 regulatory amendment, in addition to extending this institution to the private sector as well, the intention was to strengthen the protection offered to the subject (the whistleblower, precisely) who, working within an organization, whether public and/or private, reports a criminally relevant conduct by a colleague and/or a superior, in order to protect such subject from any retaliatory acts for the report made.
In particular, law no. 179/2017 supplemented the discipline relating to the administrative liability of entities pursuant to Legislative Decree no. 231/2001 and subsequent amendments, providing for the adoption of Models of organization, management and control capable of guaranteeing secure and confidential channels to enable reporters to make reports of unlawful conduct without the risk of becoming the target of retaliatory and/or discriminatory acts.
Well then, through EU Directive 2019/1937, adopted two years ago by the European Parliament and the Council, the European Union intended to adopt legislation that would standardize the interventions of Member States in the fight against corruption and the prevention of crime in both the public and private sectors.
First of all, as already provided in the Italian legal system since 2017, the EU Directive extends the scope of application of the discipline to the private sector as well: in particular, all legal entities in the private sector with at least 50 employees must establish channels and procedures for internal reporting, capable of guaranteeing the confidentiality and security of the reporter; for smaller companies, those with 50 to 249 employees, the possibility is provided to share structures for receiving reports and for any investigations to be carried out, thus facilitating the adoption of such measures by entities with fewer resources, both economic and personnel, at their disposal.
Furthermore, the EU Directive expands the range of subjects benefiting from the protection provided, as it is no longer only employees, but also suppliers, consultants, trainees, volunteers, candidates, former employees who make reports, as well as colleagues, relatives and trade union representatives who act as intermediaries for the report, will be recipients of the security and confidentiality guarantees provided by the regulatory framework.
In this way, the European legislator aims to make the act of reporting easier and safer.
Also from an objective point of view, the EU legislation represents a new development in whistleblowing matters.
Indeed, as far as the Italian legal system is concerned, to date, the protection of reporting public employees is linked to the disclosure of unlawful conduct of which the subject became aware by reason of their employment relationship; in the private sector, it is provided that internal channels are activated following reports of unlawful conduct that are detailed and based on precise and consistent factual elements.
Well, EU Directive 2019/1937 provides that reporters are protected if, at the time of the report, they had reasonable grounds to believe the information disclosed to be true, whether it concerns unlawful conduct, or acts and omissions aimed at circumventing and/or violating the rules, or, furthermore, attempts to conceal irregular and/or illegal conduct.
Furthermore, not only violations that have already occurred assume relevance, but also those that could plausibly occur.
The European legislation has also regulated the content of protection for reporters.
In particular, in addition to providing for the prohibition of retaliatory and/or discriminatory acts in the workplace, through, for example, disciplinary sanctions, dismissal, demotion, transfer or failure to convert a fixed-term contract, other support measures are established, such as access to information and advice, assistance from the authorities, legal aid at public expense, and the prohibition of retaliation also in relation to aspects such as reputational damage to the reporter.
