What is Whistleblowing?
In implementation of Directive (EU) 2019/1937, was issued on d.lgs. n. 24 of 10 March 2023 concerning “the protection of persons who report infringements of Union law and of provisions concerning the protection of persons who report infringements of national legislation”.
The decree entered into force on 30 March 2023 and the provisions provided for therein are effective from 15 July 2023.
It is recalled that reports and complaints to the judicial authority made up to 14 July 2023 continue to be governed by the previous regulatory and regulatory framework for public administration and private entities in the field of whistleblowing.
The decree applies to persons in the public and private sectors; with particular reference to the latter sector, the legislation extends the protection to whistleblowers who have employed, in the last year, the average of at least fifty employees or, even under this limit, to the bodies that deal with the cd. Sensitive sectors (services, financial products and markets and the prevention of money laundering or terrorist financing, transport security and environmental protection) and adopt models of organisation and management in accordance with Legislative Decree 231/2001.
The obligation to establish an internal reporting channel shall take effect from 17.12 only for private sector employees who have employed an average of employed persons on indefinite or fixed-term contracts of up to two hundred and forty-nine years in the last year. 2023.
Until that date, those private entities that have adopted the 231 model or intend to adopt it continue to manage the internal reporting channels in accordance with Legislative Decree no. 231/2001.
The d.lgs. 24/2023 obliges ANAC to adopt, within three months of its entry into force, specific Guidelines on procedures for the submission and management of external reports.
These Guidelines were approved by the Council at its meeting of 12 July 2023 with Resolution No. 311 and can be consulted at the following link.
WHAT CAN BE REPORTED
Conduct, acts or omissions affecting the public interest or the integrity of the public administration or private entity and consisting of:
administrative, accounting, civil or criminal offences;
unlawful conduct relevant pursuant to Legislative Decree 231/2001, or violations of the organizational and management models provided for therein;
offences falling within the scope of European Union or national acts relating to the following areas: public procurement; financial services, products and markets and the prevention of money laundering and terrorist financing; product security and conformity; transport safety; environmental protection; radiation protection and nuclear safety; food and feed safety and animal health and welfare; public health; consumer protection; protection of privacy and protection of personal data and security of networks and information systems;
acts or omissions affecting the financial interests of the Union;
acts or omissions relating to the internal market;
acts or conduct which undermine the object or purpose of the provisions of Union acts.
CHANNELS OF INFORMATION
internal (within the working context);
external (ANAC);
public dissemination (via the press, electronic media or media capable of reaching a large number of people);
report to the Judicial or Accounting Authority.
CHOICE OF REPORTING CHANNEL
These Guidelines were approved by the Council at its meeting of 12 July 2023 with Resolution No. 311 and can be consulted at the following link.
WHAT CAN BE REPORTED
Conduct, acts or omissions affecting the public interest or the integrity of the public administration or private entity and consisting of:
administrative, accounting, civil or criminal offences;
unlawful conduct relevant pursuant to Legislative Decree 231/2001, or violations of the organizational and management models provided for therein;
offences falling within the scope of European Union or national acts relating to the following areas: public procurement; financial services, products and markets and the prevention of money laundering and terrorist financing; product security and conformity; transport safety; environmental protection; radiation protection and nuclear safety; food and feed safety and animal health and welfare; public health; consumer protection; protection of privacy and protection of personal data and security of networks and information systems;
acts or omissions affecting the financial interests of the Union;
acts or omissions relating to the internal market;
acts or conduct which undermine the object or purpose of the provisions of Union acts.
CHANNELS OF INFORMATION
internal (within the working context);
external (ANAC);
public dissemination (via the press, electronic media or media capable of reaching a large number of people);
report to the Judicial or Accounting Authority.
CHOICE OF REPORTING CHANNEL
internal (within the working context);
external (ANAC);
public dissemination (via the press, electronic media or media capable of reaching a large number of people);
report to the Judicial or Accounting Authority.
CHOICE OF REPORTING CHANNEL
Signallers may use the external channel (ANAC) when:
it is not foreseen, within the working context, the mandatory activation of the internal reporting channel or this, even if mandatory, is not active or, even if activated, is not in compliance with what is required by law;
the reporting person has already issued an internal alert and has not been followed up;
the reporting person has reasonable grounds to believe that, if he made an internal alert, it would not be effectively followed-up or that the same alert could lead to a risk of retaliation;
the reporting person has reasonable grounds to believe that the infringement may constitute an imminent or manifest danger to the public interest;
Reporting agents may carry out direct public disclosure when:
the reporting person has carried out an internal and external alert in advance or carried out an external alert directly and has not been acknowledged within the time limits set for the measures planned or taken to follow up alerts;
the reporting person has reasonable grounds to believe that the infringement may constitute an imminent or manifest danger to the public interest;
the reporting person has reasonable grounds to believe that the external alert may involve the risk of retaliation or may not have effective follow-up due to the specific circumstances of the particular case, such as where evidence may be concealed or destroyed or where there is a reasonable fear that the person who received the report may be colluding with the offender or involved in the infringement itself.
external (ANAC);
public dissemination (via the press, electronic media or media capable of reaching a large number of people);
report to the Judicial or Accounting Authority.
CHOICE OF REPORTING CHANNEL
Signallers may use the external channel (ANAC) when:
it is not foreseen, within the working context, the mandatory activation of the internal reporting channel or this, even if mandatory, is not active or, even if activated, is not in compliance with what is required by law;
the reporting person has already issued an internal alert and has not been followed up;
the reporting person has reasonable grounds to believe that, if he made an internal alert, it would not be effectively followed-up or that the same alert could lead to a risk of retaliation;
the reporting person has reasonable grounds to believe that the infringement may constitute an imminent or manifest danger to the public interest;
Reporting agents may carry out direct public disclosure when:
the reporting person has carried out an internal and external alert in advance or carried out an external alert directly and has not been acknowledged within the time limits set for the measures planned or taken to follow up alerts;
the reporting person has reasonable grounds to believe that the infringement may constitute an imminent or manifest danger to the public interest;
the reporting person has reasonable grounds to believe that the external alert may involve the risk of retaliation or may not have effective follow-up due to the specific circumstances of the particular case, such as where evidence may be concealed or destroyed or where there is a reasonable fear that the person who received the report may be colluding with the offender or involved in the infringement itself.
Any conduct, act or omission, even if attempted or threatened, brought about by reason of the report, the report to the judicial or accounting authority, or public disclosure, which causes or may cause, the reporting person or the person who has made the complaint, directly or indirectly, unjust damage, to be understood as unjustified damage.
Examples of redress:
dismissal, suspension or equivalent measures;
downgrading or lack of promotion;
the change of functions, the change of the workplace, the reduction of salary, the change of working time;
the suspension of training or any restriction of access to training;
negative merit notes or negative references;
disciplinary measures or other sanctions, including financial penalties;
coercion, intimidation, harassment or ostracism;
discrimination or otherwise unfavourable treatment;
failure to convert a fixed-term employment contract into an indefinite employment contract, where the worker had a legitimate expectation of such conversion;
the non-renewal or early termination of a fixed-term employment contract;
damage, including to the reputation of the person, in particular on social media, or economic or financial prejudice, including loss of economic opportunities and loss of income;
improper listing on the basis of a formal or informal sectoral or industrial agreement, which may make it impossible for the person to find employment in the sector or industry in the future;
the early conclusion or cancellation of the contract for the supply of goods or services;
cancellation of a licence or permit;
the request for submission to psychiatric or medical examinations.
JURISDICTION TO DETERMINE RETALIATION
Examples of redress:
dismissal, suspension or equivalent measures;
downgrading or lack of promotion;
the change of functions, the change of the workplace, the reduction of salary, the change of working time;
the suspension of training or any restriction of access to training;
negative merit notes or negative references;
disciplinary measures or other sanctions, including financial penalties;
coercion, intimidation, harassment or ostracism;
discrimination or otherwise unfavourable treatment;
failure to convert a fixed-term employment contract into an indefinite employment contract, where the worker had a legitimate expectation of such conversion;
the non-renewal or early termination of a fixed-term employment contract;
damage, including to the reputation of the person, in particular on social media, or economic or financial prejudice, including loss of economic opportunities and loss of income;
improper listing on the basis of a formal or informal sectoral or industrial agreement, which may make it impossible for the person to find employment in the sector or industry in the future;
the early conclusion or cancellation of the contract for the supply of goods or services;
cancellation of a licence or permit;
the request for submission to psychiatric or medical examinations.
JURISDICTION TO DETERMINE RETALIATION
The management of retaliatory communications in the public and private sectors is the responsibility of Anac, which can rely on the cooperation of the Civil Service Inspectorate and the National Labour Inspectorate.
The judicial authority shall be responsible for declaring the acts in question void.
EVIDENCE OF RETALIATION
ANAC must ensure that the conduct (act or omission) deemed to be retaliatory is the result of the report, complaint or disclosure.
Once the reporting agent proves that he has made an alert in accordance with the legislation and has undergone a conduct considered to be retaliatory, it is up to the employer to prove that this behaviour is in no way linked to the alert.
Since this is a presumption of liability, it is necessary that evidence to the contrary emerge in the adversarial proceedings before ANAC. To this end, it is essential that the alleged offender provides all the elements from which to infer the absence of the retaliatory nature of the measure taken against the reporting agent.
PROTECTION FROM RETALIATION EXTENDED TO OTHER ENTITIES
Typologies
the facilitator (a natural person who assists the signaller in the reporting process and operates within the same working context);
persons in the same working environment as the reporting person, the person who has made a complaint or the person who has made a public disclosure and who are linked to them by a stable emotional or family relationship by the fourth degree;
work colleagues of the reporting person or of the person who has made a complaint or made a public disclosure, who work in the same working context and have a habitual and current relationship with that person;
institutions owned or operated by the reporting person or for which the same persons work, and entities operating in the same business environment as those persons.
The judicial authority shall be responsible for declaring the acts in question void.
EVIDENCE OF RETALIATION
ANAC must ensure that the conduct (act or omission) deemed to be retaliatory is the result of the report, complaint or disclosure.
Once the reporting agent proves that he has made an alert in accordance with the legislation and has undergone a conduct considered to be retaliatory, it is up to the employer to prove that this behaviour is in no way linked to the alert.
Since this is a presumption of liability, it is necessary that evidence to the contrary emerge in the adversarial proceedings before ANAC. To this end, it is essential that the alleged offender provides all the elements from which to infer the absence of the retaliatory nature of the measure taken against the reporting agent.
PROTECTION FROM RETALIATION EXTENDED TO OTHER ENTITIES
Typologies
the facilitator (a natural person who assists the signaller in the reporting process and operates within the same working context);
persons in the same working environment as the reporting person, the person who has made a complaint or the person who has made a public disclosure and who are linked to them by a stable emotional or family relationship by the fourth degree;
work colleagues of the reporting person or of the person who has made a complaint or made a public disclosure, who work in the same working context and have a habitual and current relationship with that person;
institutions owned or operated by the reporting person or for which the same persons work, and entities operating in the same business environment as those persons.
Non-punishability of persons reporting
It is not punishable who reveals or disseminates information about violations:
covered by the obligation of secrecy, other than professional forensic and medical secrecy; or
relating to the protection of copyright or
the protection of personal data or
if, at the time of reporting, denunciation or disclosure, it had reasonable grounds to believe that disclosure or disclosure of the information was necessary to carry out the alert and it was made in the manner required by law.
Loss of safeguards
Safeguards are not guaranteed when it is established, even by a judgment in the first instance, the criminal liability of the reporting person for the offences of defamation or slander or, in any event, for the same offences committed by reporting them to the judicial or accounting authority or its civil liability, for the same reason, in cases of intent or gross negligence; in such cases a disciplinary sanction may be imposed on the reporting person or complainant.
It is not punishable who reveals or disseminates information about violations:
covered by the obligation of secrecy, other than professional forensic and medical secrecy; or
relating to the protection of copyright or
the protection of personal data or
if, at the time of reporting, denunciation or disclosure, it had reasonable grounds to believe that disclosure or disclosure of the information was necessary to carry out the alert and it was made in the manner required by law.
Loss of safeguards
Safeguards are not guaranteed when it is established, even by a judgment in the first instance, the criminal liability of the reporting person for the offences of defamation or slander or, in any event, for the same offences committed by reporting them to the judicial or accounting authority or its civil liability, for the same reason, in cases of intent or gross negligence; in such cases a disciplinary sanction may be imposed on the reporting person or complainant.