Whistleblower protection regulations provided for by Italian legislation
Article 1, paragraph 51, Law 190/2012 (anti-corruption law) has introduced a new article, 54-bis, in the context of the legislative decree 165/2001. It is entitled “protection of the public employee reporting illegal conduct” and facilitates misconduct identification referred to as whistleblowing in Anglo-Saxon countries.
The institution of whistleblowing was recently reorganised with the Law 179 of 30 November 2017, which modified the article 54-bis of the legislative decree 165/2001 and the article 6 of the legislative decree 8 June 2001, no. 231. The purpose of the regulation is to safeguard public and private employees that report, including workers and collaborators of companies that supply goods or services to the public administration. It provides protection from direct or indirect retaliation and discriminatory measures when reporting breaches and/or crime to the competent authority.
The identity of the whistleblower will not be disclosed without expressed consent. All those involved in the reporting process are required to keep the information confidential.
Any discriminatory or retaliatory action adopted by the administration or company are invalid.
The National Anti-corruption Authority (ANAC) issued the decree no.6 of 28 April 2015, entitled “Guidelines on the protection of public employees that report wrongdoing (whistleblower)”.
The guidelines indicate clearly that reports must be processed electronically with computerised and cryptographic systems to protect the whistleblower.
EU directive gives high-level protection to whistleblowers
The new law, approved by the European Parliament on 16 April 2019, shields employees that report violation of EU law in the following areas: public tenders; financial services, money laundering; products and transport safety; nuclear safety; public health; consumer and data protection. It establishes “safe channels” for reporting the information and protect from all forms of retaliation.
What does the improved law say?
- Reports on working conditions receive protection too.
- Colleagues “assisting” whistleblowers are also protected. The law provides extended protection for facilitators, including individuals that work for support organisations for whistleblowers. It covers areas such as defamation, copyright and industrial secrecy infringements, and provides damage compensation.
- A more flexible concept of “intentional filling of a false report “replaced the concept of malicious and abusive reports.
- Internal and external reports have the same importance (as already happens in Italy). The EU Directive requires public and private companies with more than 250 employees to establish confidential whistleblower channels and clear internal reporting processes. The number of employees was changed from 50 to 250 to compromise with the opposition.
- It is mandatory to consider anonymous reports when well detailed. The protection extends to whistleblowers who lose their anonymity in a second stage.
- The directive on whistleblowers prevails when in conflict of interest with the directive on industrial secrecy (as mentioned in the Italian law).
- Duration of the report process change from three to two months for internal channels and from six to four months for external channels.
- Non-regression clause: the implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection already afforded by Member States.