Whistleblowing is understood as a “report of irregularities”, while a whistleblower is a public employee who reports offenses of general interest of which he has become aware due to the employment relationship. What are the regulatory changes?
Literary translation of whistleblowing is a “report of irregularities”, while for whistleblowers, according to the provisions contained in the legislation in force today (Art. 54 to del d.lgs. n. 165/2001novelized by Lay. n. 179/2017), means the public employee who reports offenses in the general interest of which he has become aware due to the employment relationship.
Since the institute’s inception in our legal system, the ANAC – National Anti-Corruption Authority – has been identified to manage reports of offenses and communications of retaliatory measures. If the Authority deems them founded (in terms of Resolution no. 469/2021), proceeds with the treatment of the report which concerns matters within its competence, while, depending on the nature of the reported offense, transmits to the public function inspectorate, to the ordinary judicial and/or accounting authorities, the reports which go beyond from its area of jurisdiction. Furthermore, the ANAC is in charge of protecting the public employee who, following the report and because of it, has suffered retaliatory measures, sanctioning the perpetrator of the retaliation. Finally, it sanctions administrations without a system for forwarding and managing whistleblowing reports.
Many of the Italian sentences concerning whistleblowing, as well as the regulations, can be consulted in Jurisprudence section of One LEGAL.
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The European directive to be implemented
The EU Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019, which entered into force on 16 December 2019, contains the provisions intended to provide whistleblowers (whistleblowers) a uniform protection in all the Member States of the Union and harmonized between the different sectors, introducing common rules that impose the adoption of effective, confidential and secure reporting channels and, at the same time, ensure the protection of whistleblowers from possible retaliation.
Legislative decree 10 March 2023 n. 24
Il legislative decree 10 March 2023, n. 24 about “the protection of persons reporting breaches of Union law and laying down provisions concerning the protection of persons reporting breaches of national regulatory provisions”, published in the Official Gazette on 03/15/2023, was adopted in implementation of the 2021 European delegation law (art. 13).
It consists of 25 articles, divided into 4 Chapters, and an annex. On it, the relevant Commissions – II and V in the Senate, II and XI in the Chamber – were called to express their opinion. On January 18, the Senate expressed it, not impeding with observations, considering reformulating article 11, paragraph 2, letter a), as an expenditure forecast, since it is a charge that cannot be remodulated and, in the technical report, in relation to the article 11, regarding the need for additional staff to be assigned to ANAC, specifically with reference to the 18 officials indicated by the law; for the Commission of Palazzo Madama itself, the reference to n. 2 units of officials to be included in the “sanctions office” to replace two imminent retirements, a reference which is due to a clerical error. On 11 January, the Guarantor for the protection of personal data had instead expressed a favorable opinion without making any comments.
Penalty violations
The art. 1 identifies the scope of objective application, i.e. the violations subject to potential reporting. It has a broader scope than the scope of application of the directive (which in Article 2, paragraph 2, allows Member States to broaden the range of protection), since it includes not only the violations of EU law indicated in Article . 2, par. 1 of the directive, but also those of national law.
In order to fall within the operational scope of the decree, the reports must in any case have as their object violations of regulatory provisions (national or European) that are detrimental to the public interest, or to the integrity of the public administration or private entity . The art. 1, in line with the art. 3 of the directive, lists a series of provisions whose application is not affected by the new regulation.
Similarly to what is already foreseen, for the public sector, by art. 54-bis of the public employment TU, art. 7 identifies the ANAC as the competent authority for external reports, also for the private sector, and in implementation of art. 12, par. 1, lit. a), of the directive, provides for the procedures for submitting reports, through channels suitable for guaranteeing the confidentiality of the whistleblower, the person involved and the person mentioned in the report, as well as the content of the report and the related documentation. Also, in implementation of art. 11, par. 6 of the directive, the law provides for the timely transmission to the ANAC (within 7 days of receipt) of the report presented to an incompetent authority, transmission of which the reporting entity must be notified at the same time.
What changes for the whistleblower
With the term whistleblower the person who reports or discloses information on violations acquired in the course of his professional activities is defined, regardless of the nature of these activities or the circumstance that the employment relationship has ended in the meantime or has not yet begun.
Among the whistleblowers protected by the directive are those who qualify as “workers” pursuant to art. 45 TFEU, i.e. persons in the private or public sector who provide, for a certain period of time, for and under the direction of third parties, certain services for remuneration.
Therefore, protection is also granted to workers with atypical contracts (part-time and fixed-term), as well as to those who have a contract or an employment relationship with a temporary agency, trainees and volunteers. The protections extend to self-employed workers, consultants, subcontractors, suppliers, as well as shareholders and members of governing bodies.
The “public” and “private” boundaries
The decree provides the definitions of the subjects, limiting the operation of the legislation to the existence of certain qualifications or conditions:
- “of the public sector”, identifying them as Public Administrations, independent administrative authorities of guarantee, supervision and regulation, economic public bodies, bodies governed by public law, public service concessionaires, publicly controlled companies and in-house companies;
- “in the private sector”, consisting of those who have employed, in the last year, the average of at least 50 subordinate workers with permanent or fixed-term employment contracts, as well as those who, despite not having employed the average of 50 workers, fall within the scope of EU acts listed in Parts IB and II of the Annex (on financial services, products and markets and prevention of money laundering and terrorist financing, environmental protection and transport security) or fall within the scope of application of Legislative Decree no. 231/2001 and adopt the organization and management models envisaged therein.
The facilitators
The directive commits EU states to extending protection measures not only to whistleblowers who work in the private (with the aforementioned limits) or public sector, but also to so-called “facilitators”, i.e. those who assist “a reporting person in the reporting process in a working context and whose assistance must be reserved”, to third parties connected with the reporting persons, such as for example colleagues or family members, and to legal entities connected to the reporting person.
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