Whistleblowing

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Pursuant to art. 12 of Legislative Decree no. 24/2023 in the context of any criminal proceedings, the identity of the reporter is covered by secrecy in the ways and within the limits established by the art. 329 of the Criminal Procedure Code ("until the accused can have knowledge of it and, in any case, no later than the closure of the preliminary investigations"); in the context of any proceedings before the Court of Auditors, the identity of the whistleblower cannot be revealed until the investigation phase is closed. In the context of any disciplinary proceedings, the identity of the whistleblower cannot be revealed, where the contestation of the disciplinary charge is based on investigations that are distinct and additional to the report, even if consequent thereto; if the contestation of the disciplinary charge is based, in whole or in part, on the report and knowledge of the identity of the person making the report is indispensable for the defense of the accused, the report will be usable for the purposes of the disciplinary proceedings only in the presence of the consent of the signaling the revelation of his identity. The investigative powers of the judicial authorities are reserved. We inform you that reports made anonymously can only be taken into consideration in particular cases (i.e. if adequately substantiated and provided in great detail) and, in any case, not pursuant to Legislative Decree no. 24/2023. The reports, even if sent anonymously in the first instance, may subsequently be integrated with the personal details of the person making the report in order to acquire any legal protection in addition to management priority. All reports, in compliance with the protection of the confidentiality of the identity of the person making the report, may be sent by the RPCT to other institutions (ordinary judicial authorities, Court of Auditors, Department of Public Function, other Administrations, etc.). The report is excluded from the access provided for by the articles. 22 ff. of the law n. 241/1990 and the articles. 5 ff. of Legislative Decree no. 33/2013, pursuant to art. 12, co. 8 of Legislative Decree no. 24/2023.

What is Whistleblowing

The European Whistleblowing Directive was created with the aim of strengthening protection of the subjects who report violations of community regulatory provisions throughout the territory of the Union. In Italy in response to the European directive, Legislative Decree no. 24/2023 was born with the aim of protecting whistleblowers from retaliation both in the public sphere and in private dress.

Reporters have various reporting channels at their disposal:

• internal - within the working context;
• external - ANAC;
• public disclosure - through print, electronic or broadcast media able to reach a number high number of people;
• report to the judicial or accounting authority.

At the time of reporting, the reporting person must have a reasonable and well-founded reason to believe that the information about the violations reported, publicly disclosed or reported is true and valid within the scope of legislation.

Reports must be made in the public interest or interest to integrity of the administration public or private entity. The reasons that led the person to report, denounce or disclose publicly are irrelevant for the purposes of his protection.

Who can report?

Legislative Decree no. 24/2023 establishes the role of reporter for the following categories:

• the employees of the Public Administrations referred to in art. 1, paragraph 2, of Legislative Decree no. 165/2001, including the staff under public law, as well as employees of the independent administrative authorities of guarantee, supervision or regulation;
• employees of public economic bodies and private law bodies subject to control public pursuant to of the art. 2359 of the Civil Code, of in-house companies, public law bodies or concessionaires Of public service;
• self-employed workers who carry out their work for entities in the sector public;
• workers or collaborators who carry out their work for subjects of the sector public that they supply goods or services or carry out works for third parties; freelancers and consultants who work for entities in the sector public;
• volunteers and interns, paid and unpaid, who work for entities of the public sector;
• shareholders and people with administrative, management, control, supervisory or supervisory functions representation, too if these functions are exercised on a purely de facto basis, by public sector entities.

This decree also extends protection to those categories of people who do not yet have a legal relationship begun, if the violations concern selection periods or pre-contractual phases, e to non-reporting subjects who may be directly or indirectly involved in the reporting process report.

What can be reported?

Legislative Decree no. 24/2023 establishes that they are subject to reporting all those behaviors e violations, which harm the public interest the integrity of the public administration or private entity where the whistleblower is involved and of which he has experience or well-founded suspicion. The report may also concern violations not yet committed if there are any elements concrete facts on which to base the accusation.

concealments can also be reported violations or evidence.

Given the potential vastness of what can be reported, the decree regulates the form written the various types of acts, offenses or violations that may be the subject of a complaint (see Legislative Decree. n. 24/2023 - 10 March 2023).

When should you contact the ANAC?

ANAC, the National Anti-Corruption Authority, is the entity responsible for managing the external channel of reports. This channel can be used when:

• In the work context, the mandatory activation of the communication channel is not foreseen report internal that is, even if mandatory, it is not active or, even if activated, it does not comply with what required From law;
• the reporting person has already made an internal report and it has not been followed up on;
• the reporting person has reasonable grounds to believe that, if he were to make an internal report, at the same not would be followed up effectively or that the report itself could lead to a risk of retaliation;
• the reporting person has reasonable grounds to believe that the violation may constitute a danger imminent or obvious for the public interest;

Furthermore, whistleblowers can directly make a public disclosure when:

• the reporting person has previously made an internal and external report or has carried out directly an external report and no response was given within the established deadlines regarding the measures expected or adopted to follow up on reports;
• the reporting person has reasonable grounds to believe that the violation may constitute a danger imminent or obvious for the public interest;
• the reporting person has reasonable grounds to believe that the external reporting may lead to the risk Of retaliation or may not be effectively followed up due to the specific circumstances of the case concrete, like those in where evidence may be hidden or destroyed or where there is well-founded fear that the person has received the report may have colluded with the perpetrator of the violation or was involved in the violation itself.

How is the whistleblower protected?

The identity of the reporter cannot be disclosed to persons other than those competent to receive or to give following to reports.

Protection concerns not only the name of the whistleblower but also all the elements of the report from which yes can obtain, even indirectly, the identification of the reporter.

The report is exempt from access to administrative documents and the right of civic access generalized.

The protection of confidentiality is extended to the identity of the persons involved and the persons mentioned in the reporting until the conclusion of the proceedings initiated due to the reporting, in compliance of the same guarantees provided in favor of the reporting person.

Condizioni

Ai sensi dell’art. 12 del d.lgs. n. 24/2023 nell'ambito dell'eventuale procedimento penale l'identità del segnalante è coperta dal segreto nei modi e nei limiti previsti dall'art. 329 del Codice di procedura penale ("fino a quando l'imputato non ne possa avere conoscenza e, comunque, non oltre la chiusura delle indagini preliminari"); nell'ambito dell'eventuale procedimento dinanzi alla Corte dei conti l'identità del segnalante non può essere rivelata fino alla chiusura della fase istruttoria. Nell'ambito dell'eventuale procedimento disciplinare l'identità del segnalante non può essere rivelata, ove la contestazione dell'addebito disciplinare sia fondata su accertamenti distinti e ulteriori rispetto alla segnalazione, anche se conseguenti alla stessa; qualora la contestazione dell'addebito disciplinare sia fondata, in tutto o in parte, sulla segnalazione e la conoscenza dell'identità del segnalante sia indispensabile per la difesa dell'incolpato, la segnalazione sarà utilizzabile ai fini del procedimento disciplinare solo in presenza del consenso del segnalante alla rivelazione della sua identità. Sono fatti salvi i poteri istruttori delle Autorità giudiziarie. Si informa che le segnalazioni effettuate in forma anonima possono essere prese in considerazione solo in casi peculiari (ovvero se adeguatamente circostanziate e rese con dovizia di particolari) e, comunque, non ai sensi del d.lgs. n. 24/2023. Le segnalazioni, anche se inviate in forma anonima in prima istanza, potranno essere successivamente integrate con le generalità del segnalante ai fini di acquisire l'eventuale tutela legale oltre alla priorità di gestione. Tutte le segnalazioni, nel rispetto della tutela della riservatezza dell'identità del segnalante, potranno essere inviate dal RPCT ad altre istituzioni (Autorità Giudiziaria ordinaria, Corte dei conti, Dipartimento della funzione pubblica, altre Amministrazioni, etc.). La segnalazione è sottratta all’accesso previsto dagli artt. 22 ss. della l. n. 241/1990 e dagli artt. 5 ss. del d.lgs. n. 33/2013, ai sensi dell’art. 12, co. 8 del d.lgs. n. 24/2023.