“Whistleblowing in Europe: an empirical approach”

Lorenzo Mulazzi

Law - Law - Università degli Studi di Parma

Abstract

Whistleblowing policies are becoming a familiar document to the majority of General Counsels all over the world. Groups of Undertakings and SMES are implementing new compliance documents pursuant to the recent legislative developments in matter of whistleblowing. In particular, EU legislation, even before national laws in European countries, imposes an obligation of protection of “whistleblowing” as a legal asset through a wide range of goals and purposes (i.e. preventive measures, accountability, inspections and repression) and, in this perspective, the fight against economic and financial crimes that undermine opportunities for investment development, is no exception to the rule. In fact, the community expects that a company should conduct itself in such a way as to demonstrate full compliance with the culture of legality, an essential part of which is the protection of the individual and collective legal assets. This paper shall be arranged in five chapters, starting with this introduction. The First chapter briefly reviews the steps that led to the erosion of legal standards in Group of Undertakings, Companies,Global Supply Chains and the lack of protection in international labour relations (especially regarding: CSR, Codes of Conduct, and Global Framework Agreements). Notwithstanding the peculiarities of the different national laws, the Second Chapter highlights the introduction of the so-called “supervisory and control systems” focusing on organizational and management protection, resulting, in the first place, in making companies responsible for developing a preventive and repressive strategy to combat retaliation against whistleblowers within their structures. The Third looks at the role played by European legislation drafting a sort of a manual providing the criteria to be used to verify the legitimacy of the restrictions imposed by governments on the matter. The Fourth looks at the recent concrete perspectives in European and national legislations and describes possible instruments of “duty of care” in corporate governance and their impact on working conditions, with a particular attention to the British and Italian experience (i.e. whistleblowing policies, strategies and best practices…). Avoiding any form of objective charge and concretely stimulating companies to recognize and address non-compliance with Law, the Fourth surveys the role of natural persons (first and foremost, the employer who remains liable for the organization, management and allocation of the resources as a function of the variable complexity of production) proceeding on a case by case basis. The Fifth looks at future prospects, supporting the idea that deterrence through the imposition of sanctions has been clearly overtaken by the priority given to (“private”) prevention as established in Codes of Ethics and Organisational, Management and Control models, with particular regard to the role of Supervisory Bodies.

Keywords

whistleblowing, prevention, corporate governance