Whistleblowing: Are Italian anticorruption authority and Confindustria guidelines inspired by Directive (EU) 2019/1937?
19 Luglio 2021
Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons who report breaches of EU law (“Directive”), dated October 23, 2019, has not yet been implemented in Italy,[1] but the anticorruption authority (“ANAC”) and Confindustria recently issued new sets of guidelines regarding whistleblowing in the public and private sectors, respectively.

While the Directive does not provide separate policies for whistleblowing in the public and private sectors, in Italy whistleblowing is regulated differently for private and public entities.

The ANAC and Confindustria guidelines seem to have taken into consideration only a few points of the Directive and expressly anticipate the need for an update after transposition of the Directive.

The Directive in a nutshell

The Directive applies to businesses with 50 or more employees based in the EU, and transposition into national law has the following deadlines:

  • December 17, 2021, for an entity with 250 or more employees;
  • December 17, 2023, for an entity with 50–249 employees.

 

  1. Protection for reporting on a wide range of EU law breaches

The Directive ensures EU-wide protection for those who report breaches of EU legislation in the fields of public procurement; financial services, money laundering, and terrorist financing; product safety; transport safety; environmental protection; nuclear safety; food and feed safety and animal health; public health; consumer protection; and privacy, data protection, and security of network and information systems. It also applies to breaches of EU competition rules, violations and abuse of corporate tax rules, and damage to the EU’s financial interests.

 

  1. Protection for a wide range of people in the private and public sectors

The Directive ensures protection for a variety of subjects in private and public organizations, including employees, self-employed people, shareholders, persons belonging to the administrative, management, and supervisory bodies of businesses, volunteers, trainees, and job applicants, as well as relatives and colleagues of whistleblowers who could suffer work-related retaliation. Also, those who report after their work relationships have ended are protected. Whistleblowers are protected against all forms of retaliation, such as dismissal, demotion, intimidation, and blacklisting. They also have access to appropriate i) support measures, including independent information and advice and legal aid in accordance with EU rules on legal aid in criminal and cross-border civil proceedings; and ii) remedial measures, such as interim relief and immunity from liability for breaching non-disclosure clauses in their contracts.

 

  1. Reporting process

The reporting process for both private and public entities includes the following:

  • setup of effective internal reporting channels;
  • identification of appropriate national authorities that must establish reporting channels that maintain confidentiality;
  • follow-up procedures and deadlines for handling reports received through internal and external channels.

 

Current developments in Italy

The 2019–2020 European Delegation Law authorized and guided the Italian government to transpose the Directive into national law.

Pending implementation, ANAC has incorporated into its guidelines the following principles of the Directive relevant to the public sector:

  • Preference for internal reporting over external reporting;
  • Irrelevance of the motives of the whistleblowers in reporting when there is a public interest at stake.

ANAC’s guidelines diverge from the provisions of the Directive in that ANAC has not extended the protections provided for whistleblowers to persons who temporarily work for public entities, such as interns and trainees, pending intervention of the legislature.

Both ANAC and Confindustria encourage the use of platforms and cryptographic tools for reporting to guarantee that the whistleblower’s identity remains confidential.

In line with the Directive, Confindustria clarified that external professionals may handle reporting with the aim of providing a company with an assessment from a qualified figure.

Confindustria guidelines, as well as the Directive, allow anonymous reporting while highlighting the risk of possible misuse of whistleblowing.

In conclusion, few of the Directive’s principles are embraced by these sets of guidelines, which appear to be temporary tools that will remain in place while awaiting the final word from the legislature.

[1] On April 23, 2021, the 2019–2020 European Delegation Law (Law No. 53/2021) was published in the Italian official journal.

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