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On 9 December 2022, the Italian Council of Ministers, close to the expiry of the deadline for the exercise of the delegated power received under Law No. 127 of 2022, approved the draft legislative decree aimed at transposing the provisions of Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019, on the protection of persons who report breaches of Union law.
The draft, in accordance with the provisions of Article 1 of the same enabling act, has been forwarded to the competent committees of the Chamber of Deputies for their opinion. They will have the opportunity to express their opinion by January 19, 2023.
Focusing the attention on the content of the draft legislative decree, it is worthwhile to dwell on some of the main provisions in order to provide the coordinates of the whistleblowing regulations envisaged therein, especially with regard to the differences that can be observed with respect to the provisions of Directive (EU) 2019/1937.
First of all, it should be said that it is addressed, in accordance, in this respect, with the provisions of the Directive, to all legal entities in the public sector and to those legal entities in the private sector that have employed, on average, at least 50 employees with indefinite or fixed-term employment contracts in the last year, and to those that, regardless of the number of employees employed in the last year, fall within the scope of application of the Union acts listed in Part I.B and Part II of Annex to the draft legislative decree.
The latter, however, in accordance with the possibility recognized to the Member States by the Directive (see Article 2(2)), extends the list of legal entities in the private sector required to comply with its provisions including those that, regardless of the number of workers employed in the last year, fall within the scope of application of Legislative Decree No. 231 of 2001, which establishes corporate liability in the Italian legal framework, and have adopted an organizational, management and control model in accordance with that decree.
Secondly, it should be pointed out that the draft legislative decree broadens the scope of the Directive also with regard to the reports that will be considered to fall within the scope of the new provisions. These reports are those that, under the conditions laid down therein, contain not only information on alleged (actual or potential) breaches of the European Union legislation referred to therein, but also information on alleged (actual or potential) breaches of Italian legislation. In fact, it is envisaged that the reference to the breaches should also be interpreted as including acts or omissions that harm the public interest or the integrity of the public administration or the legal person in the private sector and that, at the same time, are administrative, accounting, civil or criminal offenses that do not constitute violations of the European Union legislation referred to therein and/or are offenses pursuant to Legislative Decree No. 231 of 2001 and/or breaches of the organizational, management and control models adopted pursuant to that decree.
The aforementioned extension is reflected in the rules set out in the draft legislative decree in terms of differentiation with regard to the opportunity granted to a possible whistleblower to avail himself, under the conditions laid down therein and with the relevant safeguards and protection measures, of both internal and external reporting channels or, rather, only of the former. Indeed, with regard to the legal entities in the private sector, if the report concerns an alleged breach of Italian law within the limits specified above, the protection measures provided for by the draft legislative decree with respect to the whistleblower will be granted to the latter only if he has made an internal report and not also if he has made an external report. Conversely, if the subject of the report is an alleged breach of the aforementioned European Union legislation, the safeguards and protection measures provided for by the draft legislative decree with the respect to the whistleblower will be granted to the latter both if he makes an internal report and if he makes an external report under the conditions set out therein.
The third element to be pointed out is undoubtedly the fundamental role performed by the National Anti-Corruption Authority (ANAC), that is the Italian authority, for both the public and private sectors, competent and responsible for 1) activating and managing the channel reserved for external reports; 2) adopting, within three months from the date of entry into force of the future legislative decree, the guidelines on how to submit external reports; 3) receiving communications relating to any retaliation suffered by whistleblowers and/or other persons protected under the draft legislative decree and exercising investigative powers in this regard; 4) exercising the sanctioning powers set out in Article 21 of the draft legislative decree. This article provides for administrative pecuniary sanctions applicable, both in the public and private sectors, by ANAC, ranging from a minimum of €5,000 to €30,000 in cases of ascertained retaliation, obstruction, or attempted obstruction of reporting or breach of the obligation of confidentiality, and from a minimum of €10,000 to €50,000 in cases of failure to set up reporting channels, failure or non-compliance with the adoption of procedures for making and managing reports, or failure to carry out checks and analyses of reports received.
The fourth aspect worth highlighting that has attracted much attention, particularly from group companies, including multinational ones (e.g. with subsidiaries and/or branches located in several Member States), is related to the possibility of sharing reporting channels and resources for their management. This is an aspect that has been at the center of the debate, also from an institutional point of view, that took place in other Member States when transposing Directive (EU) 2019/1937 and, in particular, in Denmark. In this regard, the European Commission reportedly expressed its opinion in a letter dated June 29, 2021, and provided a restrictive interpretation, stating that a different hermeneutic solution would be contra legem, and indicated the conditions under which the resource sharing can legitimately take place in companies that belong to the same group (please see the attachment below).
With regard to the aforementioned aspect, the draft legislative decree provides that legal entities in the private sector that have employed, over the last year, an average of no more than 249 employees, with indefinite or fixed-term employment contracts, may share the internal reporting channel and its management. Ultimately, unlike, for example, Article 3 of the Loi n° 2022-401 du 21 mars 2022 visant à amélorier la protection des lanceurs d'alerte, it merely reproduces almost verbatim the text of Article 8(6) of Directive (EU) 2019/1937, according to which «Legal entities in the private sector with between 50 and 249 employees may share the resources as regards the receipt of reports and any investigation to be carried out. This shall be without prejudice to the obligations imposed upon such entities by this Directive to maintain confidentiality, to give feedback, and to address the reported breach». In this regard, not much more is added by the Explanatory Memorandum of the draft legislative decree, according to which «Private sector entities that have employed an average of no more than two hundred and forty-nine indefinite or fixed-term employees in the last year may share resources for the receipt of internal reports and for any investigation to be carried out [...]», clarifying that the lack of reference to the minimum threshold of 50 employees with respect to the provision of the Directive is due to the fact that, as mentioned above, the draft legislative decree could also be applied, under certain conditions, to legal entities in the private sector with fewer than 50 employees.
Finally, it is worth noting that the draft legislative decree provides that the provisions will become effective after four months from the entry into force of the future legislative decree, except for legal entities in the private sector that have employed, in the last year, under indefinite or fixed-term employment contracts, a number of workers not less than 50 and not more than 249, for whom the provisions of the decree will become effective starting from December 17, 2023. This provision also concerns legal entities in the private sector that fall within the scope of Legislative Decree No. 231 of 2001 and have adopted an organizational, management, and control model in accordance with that decree. If these legal entities have employed, in the last year, under indefinite or fixed-term employment contracts, fewer than 50 workers, they will be required to comply with the provisions of the future legislative decree as from December 17, 2023. Medio tempore, the provisions of Article 6, paragraphs 2-bis, 2-ter and 2-quater, of Legislative Decree no. 231 of 2001 and of Article 3 of Law no. 179 of 2017 will continue to be applied to them.
Suggested citation Bluebook: Luisa Romano, Italy: The Government Approves a Draft Decree Implementing the EU Whistleblowing Directive, CORPORATE CRIME OBSERVATORY, (Dec. 23, 2022), www.corporatecrime.co.uk/post/italy-whistleblowing-directive-implementation
Harvard: Romano, L. (2022) Italy: The Government Approves a Draft Decree Implementing the EU Whistleblowing Directive. Available at: www.corporatecrime.co.uk/post/italy-whistleblowing-directive-implementation
OSCOLA: Luisa Romano ‘Italy: The Government Approves a Draft Decree Implementing the EU Whistleblowing Directive’, (Corporate Crime Observatory, December 2022), <www.corporatecrime.co.uk/post/italy-whistleblowing-directive-implementation>
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Hyperlink to the 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 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02019L1937-20211110&from=EN
Hyperlink to the EU Commission Letter of June 19, 2021 https://www.cmshs-bloggt.de/wp-content/uploads/2021/08/Stellungnahme_4667786.pdf
Italian Council of Ministers' Document submitted to the Parliament - December 9, 2022
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