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08/04/2014

Whistleblowing in Italy: rights and protections for employees

WP C.S.D.L.E. “Massimo D’Antona”.INT – 106/2014



National report to the XIX International Congress of Comparative Law, University of Vienna, July 20-26, 2014.



This paper examines the whistleblowing in the Italian legal system. In the lack ofproper rules on such a phenomenon (quite uncommon in the Italian social reality, also due to cultural reasons) except for the civil servants, the paper goes on analysing, on the one hand, the provision applicable to the civil servants (i.e. art. 54 of the Legislative Decree no. 165/2001), and on the other hand, the instruments provided for by the Italian legal system as general principles, which can be applied by the judge in order to protect the whistleblowers in the private sector (in particular the rules against retaliatory and discriminatory acts and mobbing). The Author stresses that the recalled protection, although effective (also after the so-called 'Monti's reform', id est the Law No. 92/2012), could be not sufficient both because of the allocation of the burden of proof, and because it is applicable to the employees and only partially (as the Author explains in the last paragraph) to the whistleblowing in the context of self-employment. Then the paper analyses the balancing performed by the Italian caselaw between the right to information and the right of criticism, on one side, and the right to secrecy set forth by law in respect of business facts and information, and the personality rights granted to the employer by the Constitution,on the other side. Finally the paper deals with the applicable procedures, introduced by disciplinary codes, also according to the Legislative Decree No. 231/2001, and the problems related to internal reporting systems, in particular the balancing between the needs for the whistleblower's protection and the positive law in the matter of protection of the privacy of the person to whom the complaint relates according to the Legislative Decree No. 196/2003.



author(s): Carinci, Maria Teresa
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