Whistleblowing and its implementation in the UK, Germany, and Italy
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Our white paper on whistleblowing provides a comprehensive overview of the EU Whistleblowing Directive, its implementation in Italy and Germany, and the situation in the UK post-Brexit.
Key features of the EU Whistleblowing Directive
The Whistleblowing Directive requires EU member states to implement common minimum standards to ensure that whistleblowers are effectively protected. Whistleblowers qualify for protection under the directive provided that they had reasonable grounds to believe that the information regarding the violations reported was true and that such information fell within the scope of the directive.
Protective measures
Whistleblowers may report breaches through internal reporting channels and procedures, or through external reporting channels and procedures. Legal entities in the private and public sectors with 50 or more employees shall establish internal reporting channels and procedures. In addition, the member states shall designate authorities competent to receive whistleblowing reports, provide feedback and follow up on the reports.
Reporting channels
The directive prohibits any form of retaliation against whistleblowers, including threats and attempts at retaliation. Member states shall also take measures to protect whistleblowers from liability for breaching restrictions on disclosure, obtaining or having access to the information, or disclosing business secrets.
A whistleblower who makes a public disclosure may also qualify for protection under the Whistleblower Directive if they first reported internally and externally, but no appropriate action was taken in response to the report, or if they have reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public interest.
Public disclosure
The identity of the whistleblower shall not be disclosed to anyone other than those authorised to receive or follow up on the whistleblower report, without the explicit consent of the whistleblower.
Implementation deadlines
The member states had to comply with the Whistleblower Directive by 17 December 2021. For legal entities in the private sector with between 50 and 249 employees, the member states have until 17 December 2023 to comply with the obligation to establish internal reporting channels.
Implementation in Italy
Italy successfully transposed the EU Whistleblowing Directive into national law through Legislative Decree no. 24/2023 in March 2023. The Italian National Anti-Corruption Authority (ANAC) played a crucial role by issuing comprehensive guidelines to complement the directive. The most notable change introduced by the guidelines is the extension of the “231 model” to encompass a broader pool of employees. The 231 model is the system in which entities are liable for the crimes of their directors, managers or certain employees that advantage that entity.
Situation in the UK post-Brexit
The UK left the EU on 31 January 2020, and the transition period ended on 31 December 2020. This means that the EU Whistleblowing Directive is no longer directly applicable in the UK. However, the UK government has stated that it is committed to protecting whistleblowers and that it is considering introducing legislation to implement the Whistleblowing Directive in the UK.
Key takeaways
- Protection of whistleblowing is a fundamental tool for maintaining transparency and accountability within organisations.
- The EU Whistleblowing Directive has set clear standards for whistleblower protection and reporting channels across all member states.
- Italy and Germany have implemented the directive with specific provisions, timelines and enforcement mechanisms.
- The UK, while not subject to the obligations of the EU directive, has chosen to adopt a substantially similar package of legislation.
- All companies, regardless of their location within the EU, need to evaluate their systems for handling whistleblowing reports and ensure compliance with the relevant laws and regulations. In the whole EU, the deadline for medium sized businesses (50 to 249 employees) to establish internal reporting channels is 17 December 2023.
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