The Italian Government has a new deadline to adopt the necessary legislation to implement Directive (UE) no. 2019/1937 concerning “the protection of persons who report Union law violations” (the “Directive”), since the December 17, 2021, deadline has been missed.
In particular, according to the Law no. 127/2022 entered into force on September 10, 2022, the Parliament delegated the Government to adopt a legislative decree to implement the Directive.
The goal is to implement such directive no later than December 10, 2022, in compliance with the following principle and criteria:
In the light of the above, the Italian government shall definitely change the current Law no. 179/2017 that regulates the protection of whistleblowers, in order to be compliant with the Directive. The main measures of the Directive to be implemented include the following:
All we have to do is to wait for the publication of the legislative decree implementing the Directive.
On September 14, 2022, the European Parliament finally approved the directive implementing the minimum wage principle in the European Union. The directive was also finally approved on October 4 by the Council of the European Union.
The goal is to ensure “a reasonable standard of living”, the directive states. The latter does not provide for a precise level of minimum wage, giving full flexibility to member countries, which must ensure more transparency in salary determination.
The directive introduces an obligation for countries to establish a reliable monitoring system, as well as controls and inspections, to deal with illegal subcontracting, fictitious self-employment or unregistered overtime.
In addition, it establishes procedures to set minimum wages, promote the involvement of collective bargaining on wage setting and improve effective access to minimum wage protection for workers who are entitled to a minimum wage under national law. Indeed, member states with statutory minimum wages will have to establish a procedural framework for setting and updating minimum wages according to a range of clear criteria.
Another goal is to increase the number of workers subject to collective bargaining. To this end, countries should promote the capability of social partners to participate in collective bargaining. Should, the collective bargaining coverage rate fall below a threshold of 80%, member states should establish an action plan to promote collective bargaining involvement.
Member states will have two years to implement the directive.
A Directive containing the EU’s new whistleblowing rules was adopted by the European Parliament on 16 April 2019 in Strasbourg, with 591 votes in favour, 29 against and 33 abstentions.
The rules in question ensure greater safeguards for people who blow the whistle (whistleblowers) on wrongdoings in the workplace, in areas like “public contracts”, “financial services”, “money laundering”, “product and transport safety” “nuclear safety”, “public health”, “consumer and personal data protection”.
This important piece of community legislation became necessary in light of the outcome of a study carried out in 2017 on behalf of the European Commission. In detail, the report estimates that the lack of whistleblower protection results in losses, in the public procurement sector alone, of almost 10 billion euro per year.
Safeguards
To protect potential whistleblowers, and the information reported, the new rules provide for reporting:
Protection will be provided even if the reporting person decides to publicly disclose the information if there is an imminent threat for the public interest or a risk of retaliation.
Small undertakings and small municipalities are exempted from the protection rules.
The Directive explicitly prohibits any form of retaliation against the reporting person and provides safeguards against suspension, demotion and intimidation or other forms of reprisal against the person.
Rights
Persons who assist the reporting persons (facilitators, colleagues and relatives) will also receive protection.
Reporting persons must also be guaranteed:
Procedure for adoption of the text of the Directive
Following the final approval of the legislative text by the MEPs, the Member States will have to adapt their national legislation accordingly within two years. In fact, currently, only 10 Countries (France, Hungary, Ireland, Italy, Lithuania, Malta, the Netherlands, Slovakia, Sweden and the United Kingdom) offer complete protection to all sectors or categories of workers.
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Following the resolution of the EU Parliament dated 24 October 2017, aimed at adopting a Directive on whistleblowing, the Committee, on 23 April 2018, formulated a text proposal, which was approved by the Committee on Legal Affairs of the European Parliament on 20 November 2018.
Upon approval, the Directive would provide Member States time until 15 May 2021 to adopt it.
Let’s review in details some of the main new developments.
Internal and external reporting
The draft Directive in Chapters II and III regulates “Internal Communications” and “External Communications” respectively.
The provisions concerning “internal” reporting apply exclusively to companies with more than 50 employees, a turnover of more than 10 million or whenever they operate in the financial services sector or are exposed to offenses such as money laundering and terrorism.
Follow-up Procedure
The Directive regulates the “follow-up procedure”, which means the action taken by the recipient of the report – internal or external – in order to assess the existence of the reported facts and, if necessary, to resolve the alleged breach (including actions such as internal investigation, inspections, prosecution, or that for the recovery of funds, and/or, finally, its archiving).
The follow-up and feedback to the aforementioned procedure should take place within a reasonable time, given the need to quickly address the problem that could be the subject-matter of the report, as well as in order to prevent unnecessary disclosure.
This time period should not exceed 3 months, but could be extended to 6 months, if justified by the specific circumstances of the case, and in particular by the nature and complexity of the subject-matter of the report, which could require lengthy investigations.
Material Application Context
Article 1 of the draft Directive establishes that it applies to all breaches (and therefore reports) that may take place in sensitive contexts according to “EU legislation”, such as: (i) public procurement; (ii) financial services, prevention of money laundering and terrorism financing; (iii) product safety; (iv) transport safety; (v) environmental protection; (vi) nuclear safety; (vii) food and feed safety and animal health and welfare; (viii) public health; (ix) consumer protection; (x) private life protection and personal data protection and network and information system security.
Personal Application Context
Article 2 calls for the Directive to be applied to (i) all parties with the qualification of worker pursuant to Article 45 of TFEU, as well as (ii) all parties with the qualification of self-employed workers pursuant to Article 49 of TFEU or, again, (iii) shareholders and members of the governing body of a company, including non-executive members, volunteers and unpaid trainees, as well as, then, (iv) anyone working under the supervision and direction of contractors, subcontractors and suppliers.
In addition, the Directive applies to reporting parties whose employment relationship had not yet started, if the information concerning a breach was acquired during the selection process or other stages of pre-contractual negotiations.
Prohibition of retaliation against reporting persons and protection measures
Article 14 of the Directive requires that all necessary measures must be taken to prohibit any form of retaliation, whether direct or indirect, against reporting persons meeting. For example: (i) dismissal, suspension or equivalent measures; (ii) demotion or withholding of promotion; (iii) transfer of duties, change of location of place of work, reduction in wages, change in working hours; (iv) withholding of training; (v) negative performance assessment or employment reference; (vi) the imposition of disciplinary measures; (vii) discrimination, disadvantage or unfair treatment; (viii) non-conversion of a fixed-term employment agreement into a open-term employment agreement; (ix) blacklisting; and (x) cancellation of a licence or permit.
Article 15 of the Directive, titled “Measures for the protection of reporting persons against retaliation”, establishes that:
– comprehensive and independent information and advice shall be easily accessible to the public, free of charge, on procedures and remedies available on protection against retaliation, and
– reporting persons cannot be held liable for breaching any restrictions on the disclosure of information imposed by contract or by law, nor may they incur liability of any kind in respect of such disclosure.
In judicial proceedings relating to a detriment suffered by the reporting person, it shall be for the person who has taken the retaliatory measure to prove that the detriment was not a consequence of the report but was exclusively based on duly justified grounds.
Finally, reporting persons shall have access to remedial measures against retaliation as appropriate, including interim relief pending the resolution of legal proceedings.
Reference to the GDPR
Lastly, it is to be noted that in various articles (10 and 18) – as well as in the Recitals (58 and 79) – of the draft Directive, express reference is made to the GDPR, from which the concept of “by design” seems to be borrowed, with regard to the design of the reporting channels. This is because they must be implemented in such a way as to guarantee (i) completeness, (ii) integrity and (iii) confidentiality of the information (Art. 7).
