b>Published in the Official Gazette, LEGISLATIVE DECREE 10 March 2023, no. 24 on Whistleblowing, implementing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law.

The Decree also contains provisions regarding the protection of individuals who report violations of national legislation.

It enters into force on 30 March 2023 and will apply from 15 July 2023, except for the specific provisions applicable to private sector entities.

What is Whistleblowing?

“Whistleblowing” occurs when an employee (public or private) reports unlawful conduct of which they become aware during the course of their work activity.

The purpose of whistleblowing is to bring to light misconduct of general interest within a public or private organization.

A whistleblower is an employee who reports wrongdoing of general interest (not individual interest) that they have become aware of due to their employment relationship. This definition is provided by Art. 54-bis of Legislative Decree no. 165/2001 (General Employment Regulations), as amended by Law no. 179 of 30 November 2017 (Whistleblowing Law).

Whistleblowing and European Legislation

The primary reference legislation for whistleblowing is Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019.

The Directive establishes rules and procedures to ensure effective protection of whistleblowers regarding information acquired in a professional context about breaches of EU law in key sectors.

It provides minimum protection standards, aimed at harmonizing national regulations to protect whistleblowers who exercise their right to freedom of expression.

Whistleblowing and Italian Legislation

Pending publication of the implementing Legislative Decree in the Official Gazette, Law no. 179/2017 came into force, regulating the role of the reporting person.

• Identifies the Anti-Corruption and Transparency Officer as the recipient of reports.
• Requires ANAC to issue specific guidelines for reporting and management procedures.
• Provides protection against retaliation by public or private administrations.
• Requires the adoption of organizational and management models (aimed at preventing crimes) and the establishment of one or more internal reporting channels, including at least one alternative channel guaranteeing confidentiality, prohibition of retaliation, and sanctions against those violating protection measures.

Whistleblowing and European Alignment

The Government Decree adopts EU rules on whistleblower protection and closes infringement procedure no. 2022/0106.

According to the Chamber of Deputies Dossier, the Decree:

• (Art. 1) Extends reportable violations to include breaches of national law.
• (Art. 2) Introduces new definitions, including “public sector entities”, “private sector entities” and “others”.
• (Art. 3) Identifies workers entitled to report.
• Chapter II (Arts. 4-15) regulates internal, external and public disclosures with strict confidentiality obligations.
• Chapter III (Arts. 16-22) governs whistleblower protection measures, support measures and liability limitations.
• Chapter IV (Arts. 23-25) includes final provisions and entry into force.

Reports and Whistleblower Protection

Protected reports concern violations known in a professional context, public or private, including administrative, accounting, civil or criminal offenses.

The unlawful conduct must harm the public interest or the integrity of a public administration or private entity.

Who is Protected?

Under Art. 3, protection applies directly to whistleblowers making reports, public disclosures or complaints to judicial or accounting authorities.

Indirect protection also applies to facilitators, colleagues in the same work context and entities connected to the whistleblower.

How is the Whistleblower Protected?

Art. 16 provides protection conditions, emphasizing good faith and the irrelevance of personal motives.

Art. 17 establishes a ban on retaliation, including dismissal, demotion, transfer, discrimination, medical or psychiatric examinations, and other harmful actions.

It introduces a reversal of the burden of proof in judicial proceedings against the entity accused of retaliation.

The Role of ANAC

Art. 18 provides support measures for whistleblowers.

Art. 19 requires communication to ANAC of retaliatory measures.

Art. 21 grants ANAC authority to impose administrative fines on public and private entities.

Sanctions

In the private sector, entities must include disciplinary sanctions within their compliance models pursuant to Legislative Decree 231/2001, in addition to administrative fines.

Amendments to Legislative Decree 231/2001

Art. 23 repeals:

• Art. 54-bis of Legislative Decree 165/2001
• Art. 6, paragraphs 2-ter and 2-quater of Legislative Decree 231/2001
• Art. 3 of Law 179/2017

It fully replaces Art. 6, paragraph 2-bis of Legislative Decree 231/2001, requiring internal reporting channels, anti-retaliation measures and disciplinary systems.

Entry into Force

The Decree applies from 15 July 2023, with a transitional period.

Previous provisions continue to apply:

• For reports made before 30 March 2023
• For reports made up to 14 July 2023

When is the Internal Channel Mandatory?

From 17 December 2023, private sector entities employing up to 249 employees must establish an internal reporting channel.

Until that date, Art. 6, paragraph 2-bis of Legislative Decree 231/2001 remains applicable.

Operational Instruction 231 – Reporting

Reporting Information Notice

Whistleblowing Reporting Form