1. The directive of the UE Council substantially extends the regulation of whistleblowing.

Who reports a violation of the law, acquired in the workplace, will be protected more effectively after the final approval of the EU rules.

The EU Council, on the 7th of October 2019 approved the directive on the protection of those who (the whistleblower) reports anonymously corporate crimes. Previously in April, the European Parliament had already approved the rules that ensure minimum standards of protection for people who publicly report violations of EU law. Italy, therefore, as the other Member States do, will have to adapt to the new discipline within 2 years and implement the new EU whistleblowing rules, now regulated by law n.179/2017.

2. What is whistleblowing?

It seems necessary, to better understand the innovative scope of the EU discipline, to clarify its meaning in advance.

The whistleblowing is an institution of Anglo-Saxon origin that governs the conduct of those people who, within their working sphere, reveal a possible fraud or a serious risk and decide to report it.

The term whistleblower derives from the phrase to blow the whistle, literally "blowing the whistle", referring to the action of the referee in signaling a foul or to the action of a policeman trying to stop an illegal action.

The whistleblower is an individual who publicly reports to the authorities, illegal or fraudulent activities within the government, or alternatively within a public or private organization or a company. The revelations or complaints can be various: violation of a law or regulation, the threat of public interest such as in case of corruption and fraud,  or also serious and specific situations of danger for public health and safety.

These subjects can report the illegal conduct or dangers that they have come to know,  to the judicial authorities or they can also make them public through the media, or associations that deal with these kinds of problems.

Often, however, the whistleblowers, especially due to the previously lacking of legislation, were driven by high values ​​of morality and altruism, to expose themselves individually to retaliation, or vexatious actions, by the company receiving the report or by individual subjects responsible of the accusations. They were at the risk of disciplinary sanctions, layoffs or physical threats.

3. Innovations brought by the EU directive.

The most significant innovation certainly relates to the extent of the protected subjects, in fact, to benefit from the rule, alongside the employees, there will also be self-employed workers, freelancers, consultants, contractors, suppliers, and even volunteers, trainees and job seekers.

At the same time, the number of companies involved will also be greater; in fact, today the regulation includes all private companies with more than 50 employees or with an annual turnover exceeding 10 million euro, only small and micro enterprises will be exempted, except those operating in the financial sector or at risk of money laundering.

The innovative scope also extends to the sectors involved, which are no longer limited to the offenses (so-called predicate crime) considered in the legislative decree 231/2001.

The directive indeed, includes further sectors, such as privacy, public health, environmental protection, consumer protection, financial services, nuclear safety.

In essence, the directive's effort is to include the largest possible number of sectors that may be of interest to the subject.

Pragmatically, to guarantee the security of potential informants and the confidentiality of the information disclosed, the new rules will allow the reporting of reports: within the institution involved (as a company) or directly to the competent national authorities, as well as to the qualified EU authorities. Therefore, these communication channels must necessarily be created both by companies and by the national authorities themselves. In the case that adequate measures have not been taken in response to the initial reporting of a whistleblower, or if it is believed that there is an imminent danger to the public interest or a risk of retaliation, the informant will still be protected in the event he decides to publicly disclose information, without going through these channels.

The deadline for giving a tangible follow-up to the report made by the whistleblower is also set in three months.

In the end, for the protections for the reporter, the directive adds some very strong tools (temporary resumption, free access to information for protection, legal and financial assistance). Very important in this area of interest, is certainly, the exclusion of responsibility in certain types of proceedings (defamation, copyright infringement, including industrial secrecy, protection of personal data, compensation in civil, public and labor law).

4. The rationale and objectives of the new discipline.

The extensive rationale of the new discipline is to be found in recent scandals such as LuxLeaks, Panama Papers and Football Leaks which have helped to highlight the great precariousness of informers today.

These scandals, have shown how important the whistleblower disclosures are to identifying and preventing violations of EU law, that harm the public interest and the welfare of society.

The lack of effective protection of whistleblowers at the EU level can harm the functioning of EU policies in a Member State, but can also extend to other countries and the EU in its entirety.

Moreover, the nefarious economic impact of the previous legislation should not be unrevealed, in fact, according to a 2017 study carried out on behalf of the Commission, the loss of potential benefits due to the lack of protection of informants, only in the field of public procurement, is between 5.8 and 9.6 billion euros per year for the EU.