Italy: What are the main features of the new statutory regulation adopted on whistleblowing?

The Decree (in force starting from 15 July 2023) is intended to be the milestone on whistleblowing both for the public and private sectors and deeply innovates the former (poor) discipline.

Its scope covers a wide area of violations of national and European law that are such as to harm the public interest or the integrity of the public administration or private entity and it is no more limited to specific criminal offences.

The most innovative profile of the new regulation is that in private sector the entities mandatorily required to comply with the rules on whistleblowing have been significantly increased: entities that have employed, in the last year, an average of at least 50 employees; entities (even with less than 50 employees) operating in the banking, financial, transport safety or environmental protection sectors; entities (even with less than 50 employees) with legal personality, companies and associations, including those without legal personality, having adopted organization and management models pursuant to a Legislative Decree no. 231/2001.

Regarding the whistleblowing procedure, a more detailed discipline is enshrined by the legislation. In particular, each entity is demanded to adopt an internal reporting channel to be previously discussed with Trade Union representatives. The use of an external reporting channel, established at the Italian anti-corruption authority (ANAC), is also feasible, but only residually compared to the use of the internal one.

In the drawn-up context, the aim of the regulation remains focused on the protection of the whistleblower’s identity and on the prohibition of retaliation, with procedural implications as well (i.e. the burden of proof on the whistleblower becomes lighter). These profiles are, however, been further enhanced – amongst others – by the express provision that the dismissal consequent to a report made pursuant to the Legislative Decree implementing European directive (EU) 2019/1937 to a Court or to an accounting authority or to a public disclosure is null and void. From an objective standpoint, extensive protection is granted to the whistleblower against retaliation, expressly listing specific cases that fall under it (e.g. dismissal, change of duties, reduction of salary etc).

Significant innovations are also the introduction of a system of sanctions aimed at making the protection effective as well as the discipline of support measures to the whistleblower (which consist of information, assistance and advice on the concerned discipline) by non-profit organisations carrying out activities of general interest with civic, solidarity and socially useful purposes.

Lastly, it shall be evidenced that the protection set out in the new Legislative Decree is granted not only to whistleblowers in the strict sense, but also to so-called facilitators (i.e. persons who assist a whistleblower in the reporting process, operating within the same working environment and whose assistance is to be kept confidential) and other persons – specified in more detail in the Decree – close for several reasons to the whistleblower himself/herself.

Key Action Points for Human Resources and In-house Counsel

Practical Points

• The companies shall make easily accessible in the workplace the information on whistleblowing procedures, even by publishing it on their own website (if any).
• The internal reporting channel must be such as to ensure – including through the use of encryption tools – the confidentiality of the identity of the person making the report, of the person involved and of the person in any event mentioned in the report, as well as the content of the report and of the relevant documentation.
• It is crucial that companies entrust the management of the internal whistleblowing channel to persons who are autonomous and have specific training.