whistleblower

It ‘a few days ago that two companies of Nike, the internationally known manufacturer of shoes, would be under the magnifying glass of the European Commission for alleged aid from Holland who – according to the agencies – would provide to these companies favorable tax treatment in exchange for royalties tax deductible. 

The newspaper Il Sole 24 Ore has explained the matter, noting that the alleged State aid granted by the Netherlands to Nike had been at the center of the Paradise Papers revelations already in November 2017: “From the stolen card by an unknown whistleblower – reads in the article – within the consulting firm Appleby, specializing in the creation of companies in tax havens, it was found that Nike had set up its European headquarters in Hilversum in 1999 and since then almost all non-US sales going through countries Netherlands. “ 

Although the outcome of the story is still under evaluation for a long time, once again we are faced with a possible story of corruption, traits undefined, come to light thanks to an employee survey “well aware.” The law now defines “whistleblower”. 

But who is the whistleblower? And how is it protected by law? 

In this new weekly Phersei article we will try to answer your questions trying to explain how it is defended ” blower Fischetto ” which is the literal translation of the term whistleblower.

He is the one who, in a public or private company, denounces and reveals irregularities, fraud or serious danger of corruption. His complaint is made only for a good purpose in order to protect the public good, that of the same company and other employees. 

The blower is not only able to observe and disclose with transparency and determination of the people’s infidelity but bravely he faces a difficult situation, risking acts of personal and professional retaliation. And that’s why even in Italy not long ago it was considered necessary to establish a legal instrument able to protect these employees. 

Already with the United Nations Convention against Corruption , which dates back to 2003, and   the Council of Europe Convention on Corruption Italy he had recognized this figure but with the lines Guide published by ANAC (National Anti-Corruption Authority) in 2015 was tried to improve protection for employees, encouraging them also to report. 

And ‘only then in 2017, by Law 291, which were defined instruments to defend the whistleblower.

His reports can be anonymous but it is forbidden to reveal his identity in order to protect the child, even if the secret will be inevitably to fall if the attorney involved may consider founded the charges enough to open an investigation. 

A few months ago, finally, with resolution no. 1033 of 30 October 2018 was issued ANAC regulations on the exercise of sanctioning powers in the field of protection of the authors of crimes or irregularities reports of which they become aware in the context of an employment relationship . 

The new regulation, which puts an end to a series of prejudices and shortcomings of the previous laws, states that not only the employee that complaint can not be sanctioned but also defines who can not suffer from discriminatory measures that have negative effects on working conditions . 

If, in fact, in which the employer operates in bad faith by punishing the employee, he could face a fine which can range from 5,000 to 30,000 euro and go up to € 50,000 if the non-performance is established of analysis and verification of the reports received. 

In addition, it provides for the reintegration into the workplace for those who already have been fired. 

In America, even, it was established the Whistleblower day. E ‘on July 30 and is defined as the National Day of blowers . This figure, in fact, played a key role in defending American democracy and eliminating fraud and abuse for this is well remembered and celebrated by the institutions. 

But the whistleblower can be carried out individually investigations of the company?

The answer to this question is NO. And last July, came the confirmation by the Supreme Court in its judgment of 26 July 2018, n. 35792 which is thus expressed: ” the whistleblower is not authorized to make improper investigations for purposes of reporting .”

The use of prepared authority or reliance on external investigations company is still deemed essential. Therefore, although the law protects the whistleblower, the person may not engage in improper investigations in relation to the fact reported.