The new whistleblowing regulation in Italy
What does the legislative decree of 15 July 2023 provide, which introduced the possibility of submitting reports to Anac instead of to your own body. The speech by Paolo de Berardinis and Sara Ferrandino
The Legislative Decree 24/2023 implemented the European Directive 2019/1937, the main objective of which is to guarantee adequate protection to people who work in the public or private sector and who decide to report illicit behavior of which they have become aware in the scope of your working relationship.
The new rules came into force on 15 July for everyone, while for private sector companies, which have employed up to 249 subordinate workers in the last year, this obligation will come into effect from 17 December 2023. Until then the discipline provided for by Legislative Decree 190/2012, the so-called Severino Law.
As illustrated by the Guidelines published by ANAC with resolution no. 311 of 12 July, the new regulation is aimed, on the one hand, at guaranteeing the manifestation of freedom of expression and information, which includes the right to receive and communicate information, as well as the freedom and pluralism of the media. On the other hand, it is a tool to combat (and prevent) corruption and maladministration in the public and private sectors.
The above must be guaranteed through an adequate system that effectively protects whistleblowers and is confidential and secure, therefore offering real protection.
Those who report, so-called whistleblowers , provide information that can lead to an investigation, therefore the detection and prosecution of crimes, thus strengthening the principles of transparency and responsibility typical of democratic countries.
The list of subjects who can submit a report and, therefore, who enjoy the relevant protection has been extended: in addition to employees of public law bodies and employees of public service concessionaires, art. 3 of Legislative Decree 24/2023 also identifies volunteers and trainees who work for third sector entities, shareholders and self-employed workers who work for public sector entities, including public employees who provide goods or services or who carry out works for third parties.
The "beating heart" of the recent legislation is represented by Chapter III of the aforementioned legislative decree, entitled " Protection measures ". The rationale for which a specific regulation was introduced to protect the whistleblower is not only aimed at protecting this subject but also stimulating reporting.
The violations that can be reported are strictly identified as behaviors, acts or omissions that damage the public interest or the integrity of the public administration or private entity. The category was expanded by the decree in question compared to what was previously provided for by the so-called Severino Law.
Another novelty is the introduction of the so-called "external reporting", where the reporter, in addition to directing his report to the channels of the company or public body, can contact the ANAC directly or to the public disclosure channels, as identified by the same Authority in its Guidelines (art. 7 of Legislative Decree 24/2023).
Reporting to the ANAC channel is possible when, for example, the reporter fears the risk of retaliation or has already made an internal report and it has not been followed up on. The concrete methods of presentation and management of external reports are contained in the Guidelines prepared by the same authority.
The decree concludes with the regulation of a new sanctioning system for the reported subject who has engaged in illicit behaviour: without prejudice to the various forms of responsibility. In particular, the art. 21 allows the ANAC to impose an administrative fine of up to 50,000 euros.
This is not the place to examine all the various profiles of the legislation under examination, to which much attention must be paid, given that both the national and European legislators have tangibly shown an effective, concrete interest.
Lawyer Paolo de Berardinis and Doctor Sara Ferrandino
Berardinis Mozzi law firm
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/economia/whistleblowing-italia-decreto-24-2023/ on Sat, 09 Sep 2023 05:00:30 +0000.