On 7 October 2019, the
European Council adopted the Directive on the “Protection of
individuals who report breaches of EU law“
(known as whistleblowers), i.e. those
within the territory of the European Union who report misconduct of which they
have become aware in the workplace.
Member States of the Union
have two years from the forthcoming date of publication of the Directive
in the Official Journal of the European Union, in order to transpose the EU
regulations into national law.
The measure aims to
harmonise, within the European Union, the regulations on whistleblowing, giving all countries the opportunity to model their
national legislation on the basis of best international standards and
practices.
In this context, Italian Law
179/2017 will be affected by numerous changes.
Comparison
between Italian legislation and the EU Directive
The first aspect intended to
be amended concerns the scope. Whilst the Italian law applies only to companies
that have adopted management and control models (so called “Organisational
Model 231”), the Directive concerns all private companies with more
than 50 employees or an annual turnover exceeding €10 million
(irrespective, therefore, of the application of Model 231). Small- and
medium-sized enterprises are therefore exempted, with the exception of those
operating in high-risk sectors (e.g. financial risk or money laundering risk).
As regards the public sector, the EU directive leaves it up to the Member
States to exempt municipalities with less than ten thousand inhabitants and
public bodies with less than fifty employees.
The directive also broadens
the scope of protected subjects, including, not only employees, but also
self-employed workers, freelancers, consultants, contractors, suppliers,
volunteers, trainees, etc. Protection is also extended to informants’
family members and colleagues.
Public authorities and
companies receiving a report are required to follow up within three months,
otherwise the reporter shall be entitled to publish the information (e.g. via
the internet or social media).
In addition, as regards the
Italian legislation that refers to “information channels”, the
directive provides for the appointment of a company contact person (department
or person) responsible for receiving the report to be verified within three
months.
The European Directive also
covers the sectors subject to reporting. Whilst in Italian legislation
the areas covered by the reports concern the offences referred to in
Legislative Decree no. 231/2001 (i.e.., “alleged offences”), the
European directive, on the other hand, includes additional sectors, such as
public procurement, financial services, privacy and data protection, etc.
Lastly, as regards anonymous
reports, whilst in Italy, in the public sector, the identification of the
reporter is foreseen and, in the private sector, anonymous reports are
permitted, the Directive allows for anonymity, leaving it up to the Member
States to decide whether public bodies and authorities are obliged to accept
these types of alerts.