Italian whistleblowers will be better off thanks to the European Union. Here is why

In 2017, Italy introduced a specific legislation aimed at protecting whistleblowers from the discrimination they are victim of in the workplace. The law no. 179/2017 has been approved after a steady campaign from civil society organisations Riparte il futuro (the former name of The Good Lobby Italia) and Transparency International Italia which lasted for 17 months and ended with a wide majority of supporting votes in Parliament.

However (or, as it would be better to say, obviously), that law is not perfect. Current legislation explicitly protects some categories of workers only, ie. the public employees, the employees of suppliers to the public sector, and employees from private companies which have adopted a compliance programme (which is a stark minority in Italy). According to the law, protection is granted only if the disclosure would defend the integrity of the public administration, and requirements for protection are stricter in case of breach of trade or state secret. The confidentiality around the whistleblower’s identity is protected if s/he discloses an administrative breach, but they could lose the confidential status in case a criminal proceedings is initiated (also) thanks to their report. 

However, we have now a Directive for the protection of persons reporting breaches of Union law (no. 2019/1937/UE, published on the Official Journal of the European Union in December 2019) which provides good minimum standards of protection. The implementation of this Directive will be an opportunity to improve the current Italian law under many aspects.

Thanks to the implementation of the Directive, private sector and public sector employees will be treated equally. All business’ stakeholders will be protected, including suppliers, vendors, volunteers, external consultants and anyone else who gets in touch with a specific business. In some cases, the Directive protects also the WB’s so-called facilitators (family members, colleagues) as they might face discrimination too. Companies employing a minimum of 50 workers shall provide them with internal reporting channels (whether they have a compliance programme or not).

In implementing the Directive, the legislator shall pay a special attention to at least the following:

  • the new law shall merge domestic and European legislation, applying the protection provided from the Directive to both; 
  • sectors of application shall be carefully discussed: our view is that they shall be the widest possible, with no exclusions, so to promote a culture of whistleblowing at any sector and level and in favour of all individuals;
  • trade unions shall be considered as a reporting channel and thus whistleblowers who report to the union shall be protected as if they used the internal reporting channel;
  • the reference to the public interest, as opposed to the (Italian) interest to the integrity of the public administration, shall be explicitly included;
  • since the Directive gives the possibility to Member States to specifically include consideration for anonymous reports, this possibility should be clearly foreseen in the national legislation.

The EAT project provides companies with a solution tool which is clearly in line with the Directive, and in this sense could help companies in preparing themselves for the upcoming compliance requirements. More in detail, the cloud feature allows for reports being made by external stakeholders too, while the TOR feature allows for the whistleblower’s complete anonymity. Also, being an open source software, it can be easily adopted by small and mid-size companies at no or minimum cost.

The Good Lobby has organised an advocacy roundtable in February 2020, gathering many Italian whistleblowing stakeholders before MPs from Chamber and Senate and a representative of the Ministry of Justice (this latter will in fact be drafting an implementation bill, to be discussed in Parliament). The roundtable had the objective to represent in front of the legislator the priorities for implementation, and many different issues have been discussed, from labour law considerations, freedom of speech, anonymity, business criminal liabilities, and technology matters.

We do not expect a prompt implementation of the directive by the Italian government, but we are determined to work with private organisations and public administration in order to raise awareness of the upcoming compliance requirements and disseminate a culture of whistleblowing, while lobbying the legislature in order to obtain the best possible implementation law.