Whistleblowing, secure channels in companies with over 50 employees (Il Quotidiano del Lavoro de Il Sole 24 Ore, 9 December 2019 – Vittorio De Luca, Antonella Iacobellis)

On 26 November 2019, Directive of the European Parliament and Council no. 1937/0/201, dated 23 October 2019, concerning the protection of individuals who report breaches of EU law, therefore, concerning whistleblowing, was published in the Official Journal of the European Union. Of specific importance, the provisions of the Directive are revealed, which include: – the creation of secure reporting channels. In fact, it provides for the obligation of creating reporting channels within both public or private organisations with over 50 employees and within municipalities with over 10,000 inhabitants (Article 8); – a wide range of individuals protected by the Directive who are given the opportunity to make reports: (i) employees pursuant to Article 45, paragraph 1, of the Treaty of the Functioning of the European Union, including civil servants; (ii) self-employed workers pursuant to Article 49 of the Treaty on the Functioning of the European Union; (iii) civil servants, shareholders and members of the administrative, management or supervisory body of a company (including non-executive directors); (iv) paid and unpaid volunteers and trainees; (v) any person who works under the supervision and management of contractors, subcontractors and suppliers; (vi) reporting persons, if they report or disclose information on breaches obtained in the context of an employment contract that has since terminated; (vii) reporting persons whose employment contract has not yet started in cases in which information concerning a breach has been obtained during the selection process or other stages of the pre-contractual negotiations (Article 4); – the support and protection measures 1) of facilitators, 2) of third parties associated with the whistleblower who could risk retaliation in a work context (e.g.: colleagues or relatives of the whistleblower), 3) of the legal entities pertaining to the whistleblower, for whom he works or with which he is otherwise associated in an employment (Article 4). It concerns individuals who could also be subject to so-called “indirect retaliation” which takes place, for example, by “cancelling the provision of services, blacklisting or boycotting”; – a hierarchy of reporting channels, prioritising and encouraging reporting via internal channels and then resorting to external channels, which the public authorities are required to set up (Articles 7 and 8); – the provision of a response deadline not exceeding 3 months of the report, a of the date of acknowledgement of receipt of the report, or, if no notification has been sent to the reporting person, three months as of the expiry of the seven-day deadline from the making of the report (Article 9); – the scope of application of the new EU rules on whistleblowing to protect informants who also reveal breaches a) in sectors such as that of public procurement, services, products and financial markets; b) in the prevention of money laundering and terrorist financing; c) in product safety and compliance; d) in transport safety; e) in environmental protection; f) in nuclear radiation protection and safety; g) in food and animal feed safety and in the health and well-being of animals; h) in the protection of public health; – the reversal of the burden of proof on individuals who adopted damaging measures in judicial proceedings (Article 21); – exemption from liability due to the disclosure of information for the whistleblower (Article 21). The purposes expressly provided for by the Directive are to guarantee effective protection of: – “informants” and, therefore, the categories of individuals who “although not dependent on their work activities from an economic point of view, still risk being subject to retaliation for having reported breaches. The forms of retaliation against paid or unpaid volunteers and trainees include: no longer using their services, giving them negative job references, otherwise damaging their reputation or career prospects”; – “facilitators, work colleagues or relatives of the reporting person who are under an employment contract with the reporting person’s employer or a customer of the latter or a recipient of the services of the latter”; – trade union representative or labour representatives if (i) they personally make a report as employees; (ii) they provide the whistleblower with advice and support.

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