M.O.O.C. Unito

The Directive provides an extensive personal scope, which not only includes persons having the status of worker, including civil servants, but also persons having self-employed status, shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees and any persons working under the supervision and direction of contractors, subcontractors, and suppliers.

Most of the countries will have to modify their national law in implementing the Directive, as, while they all recognise the figure of whistleblower in civil servants, and almost all - except Austria - include workers under the supervision of contractors, subcontractors or suppliers, none of them recognise volunteers or people whose employment relationship has not yet started, or shareholders. On the other hand, Estonia and Ireland include former employees. Only Ireland explicitly includes freelancers and, together with France and Estonia, trainees.

Italian law, albeit only for the private sector, includes “persons serving as representatives or holding administrative or senior executive positions within the body or an organisational unit of same, and being financially and functionally independent and persons exercising management and control of same” and generally “persons subject to their direction or supervision”. However, the latter definition is too general and does not allow for it to be established whether, in the private sector, other categories of workers identified by the Directive are included.

Another overly generic definition is found in the Slovenian Integrity and Prevention of Corruption Act. It applies to anyone who reports any kind of corruption to the Commission and to officials who report any kind of unethical or illegal conduct they have been requested in their sphere of work. Therefore, the law does not expressly identify all of the various categories of workers to which it applies – except for official persons - but is generally addressed to everyone (and not only to workers). 

From the countries examined, France is undoubtedly the one whose whistleblower legislation applies to the most categories of workers. The Constitutional Council has specified that the Sapin 2 Law procedure is limited to “whistleblowers making an alert against the organisation employing them or the one with which they collaborate in a professional context”. Consequently, the Sapin 2 Law applies to agents, holders or contract staff belonging to the structure subject to the obligation, to trainees and apprentices, as well as to external and occasional collaborators of the administration, bodies or communities concerned, such as voluntary users of the public service who actually participate in its execution, either as reinforcement or by substituting a public official.