In the Gazette the LEGISLATIVE DECREE of 10 March 2023, no. 24 on Whistleblowing implementing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019, concerning the protection of individuals reporting breaches of Union law. The Decree also contains provisions concerning the protection of people reporting violations of national regulatory provisions. Effective from 30 March 2023 and will apply from 15 July 2023, except for the specific regulations provided for private sector entities.

What is Whistleblowing

The practice of "Whistleblowing" occurs when an employee (public or private) reports unlawful conduct they become aware of in the course of their work. The aim of Whistleblowing is to bring to light misconduct of a general interest within a public or private organisation.

A whistleblower is an employee who reports misconduct of general interest, rather than individual interest, which they become aware of through their employment relationship: this is defined in art. 54 bis of D.lgs. no. 165/2001 (general provisions on labour organisation) as amended by Law 30 November 2017, no. 179 (Whistleblowing Law with provisions for the protection of those reporting offences or irregularities).

Whistleblowing and European Legislation

The reference legislation for Whistleblowing is primarily Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019, concerning the protection of persons reporting violations of Union law. It establishes rules and procedures to ensure effective protection of whistleblowers for information obtained in a professional context regarding breaches of Union law in key sectors.

It provides minimum protection standards, aimed at harmonising national legislation on whistleblower protection, who in reporting, exercise their right to freedom of expression: its adoption is deferred to the implementing national legislative decree.

Whistleblowing and Italian Legislation

Pending the publication in the Gazette of the implementing legislative decree of the EU rules, Law no. 197/2017 has come into force, which mandates rules for the role of the whistleblower (with amendments to art. 54).

• Designates the recipient of reports as the person responsible for the prevention of corruption and transparency.
• Requires ANAC to provide specific guidelines on the procedures for submitting and managing reports.
• Provides protection from potential retaliation by public and private administrations.
• Mandates the establishment (paragraph 2 bis) of organisational and management models (capable of preventing offences) and the presence of one or more channels and at least one alternative reporting channel that ensures the confidentiality of the whistleblower's identity, prohibits retaliatory or discriminatory acts, direct or indirect, and sanctions against those who violate the whistleblower protection measures.

Whistleblowing and European Adjustment

The upcoming Government Decree should adopt the European standards on the protection of persons reporting breaches of Union law, also to close infringement procedure no. 2022/0106. The draft Decree to be issued reveals the Chamber Dossier,

• (Art.1) broadens the violations subject to possible reporting compared to the European catalogue, including national law breaches.
• (Art.2) introduces new definitions compared to those reported in art.5 of the Directive, in particular “public sector entities”, “private sector entities” and “others”.
• (Art.3) identifies the workers who are granted the right to report.
• Chapter II (arts. 4-15) of the decree regulates internal, external, and public disclosures, setting out specific confidentiality obligations.
• Chapter III (arts. 16-22) outlines the protection of reporting individuals, setting the conditions for the application of protection measures and providing safeguards against potential retaliation, support measures, and scenarios limiting liability.
• Chapter IV (arts. 23-25) contains final provisions indicating the date of entry into force.

Reporting and Whistleblower Protection

Reports covered under the new protection regime involve those violations of which the reporting individual becomes aware in a public or private workplace context, identified in article 2, paragraph 1, letter a) of the new Decree.

This includes all unlawful acts of an administrative, accounting, civil, or criminal nature; in any case, it is a condition that the illicit behaviour, act, or omission harms the public interest or the integrity of the public administration or private entity.

Whistleblowing: Who is Protected by the Decree?

According to art. 3, the decree directly protects the authors of reports, public disclosures, or complaints to the judicial or accounting authority. Indirectly, it also protects facilitators, individuals within the whistleblower's same workplace context, their colleagues, and entities related to the whistleblower's workplace context (art.3 paragraph 5).

How to Protect the Whistleblower According to Italian Legislation?

The Adoption Decree in article 16 sets the conditions for protecting the reporting individual, emphasising their good faith at the time of reporting and specifying the irrelevance of the reasons that led them to report. Article 17 imposes a prohibition on all forms of retaliation against the whistleblower, (similar to art.19 of the Directive), also indicating possible retaliatory actions (dismissal, demotion, relocation, and any other action resulting in negative effects on employment contracts, other severe afflictive behaviours, such as requiring medical or psychiatric examinations, and discriminatory actions).
The article provides within judicial proceedings a reversal of the burden of proof against the entity that committed the reported violations, similarly, in compensatory judgments, for the retaliatory nature of the behaviour and the damage caused, which those individuals referred to in article 3, paragraphs 1, 2, 3, and 4, demonstrate they have suffered following the report, disclosure, or complaint itself.

Whistleblowing: ANAC's Role

Article 18 ensures support measures in favour of the reporting person. Moreover, article 19 requires ANAC to be informed of any retaliatory measures potentially taken against the Whistleblower. ANAC (article 21) is granted the authority to apply administrative monetary fines to public or private entities.

Sanctions in the Event of Whistleblowing

Concerning the private sector, the entities and legal entities referred to in article 1, paragraph 1, letter q), number 3) foresee in the disciplinary system adopted according to article 6, paragraph 2, letter e) of D.lgs. 8 June 2001, no. 231, disciplinary sanctions against those found responsible for the breaches referred to in paragraph 1 – sanctions that accumulate with the aforementioned administrative monetary ones.

Amendments to D.lgs. no. 231/2001

The Decree in its final provisions (art. 23) provides for the repeal of current provisions on whistleblowing as transposed into the decree:

• art. 54-bis of D.lgs. 165/2001,
• art. 6, paragraphs 2-ter and 2-quater, of D.lgs. 231/2001
• art. 3 of Law 179/2017.

Article 23 of the Decree entirely replaces paragraph 2-bis of art. 6 of D. Lgs. 231/2001, mandating that the models defined in paragraph 1, letter a), provide internal reporting channels, a prohibition on retaliation, and a disciplinary system, which is adopted according to paragraph 2, letter e), from the implementing decree of Directive (EU) 1937/2019.

Entry into Force of the Whistleblowing Decree

According to art.24, the Decree becomes applicable starting 15 July 2023.
The article establishes a "transitional period".
The previous provisions of article 54-bis of legislative decree no. 165 of 2001, in article 6, paragraphs 2-bis, 2-ter, and 2-quater, of legislative decree no. 231 of 2001, and in article 3 of Law no. 179 of 2017, continue to apply:

• for reports or complaints to the judicial or accounting authority made prior to the decree's effective date (30 March 2023)
• for reports made until 14 July 2023.

Reporting Irregularities: When Does the Obligation to Establish an Internal Channel for the Whistleblower Start?

From 17 December 2023, the obligation to establish an internal reporting channel is set (pursuant to Decree no. 24/2023) for private sector entities that employed, in the last year, an average of 249 or fewer permanent or fixed-term employees.

Until 17 December 2023, article 6, paragraphs 2-bis, letters a) and b), of legislative decree no. 231 of 2001, in its version in effect until the entry into force of D.lgs no. 24/2023, continues to apply.

Operational Instruction 231 for Reporting

Reporting Notice

Whistleblowing Reporting Form