ITALY Trends and Developments Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills
ing”) and for the protection of those who make the reports (“whistle-blowers”) from any form of retalia - tion, particularly in the workplace. Decree 24/2023 implemented Directive (EU) No 2019/1937 “on the protection of persons who report breaches of Union law” (the “Directive”) and extended the scope of the protections provided therein. Under Decree 24/2023, the whistle-blower’s protec - tion regime applies to the following. • Public sector entities. • Private sector entities that, in the preceding year: (a) employed an average of at least 50 employ - ees with permanent or fixed-term employment contracts, limited to reports of breaches of EU law in the specific areas set out by Decree 24/2023; or (b) adopted Model 231, limited to reports of breaches of: (i) EU law in the specific areas set out by Decree 24/2023 (if the entity has 50 or more employees); (ii) Decree 231; and (iii) Model 231; or (c) operated in regulated sectors at the European level (eg, financial markets or the credit sector), limited to reports of breaches of EU law in the specific areas set out by Decree 24/2023. Ordinarily, whistle-blowers can make their reports via internal reporting channels, established within each entity falling within the scope of Decree 24/2023. Reports can be made both in writing, including through IT systems (eg, dedicated online platforms), and orally (ie, by telephone, other voice messaging systems or in person). A person, department or corporate body within the entity (or an external third party) shall be appointed to follow up on the reports. In detail, they shall maintain communications with the whistle-blower and, if nec - essary, request the latter to provide further informa - tion; diligently follow up on the reports; and provide feedback to the whistle-blower as to the results of their investigation. The investigation can point out the need to adopt organisational and compliance meas - ures and/or to issue disciplinary sanctions.
Decree 24/2023 provides whistle-blowers with a wide range of guarantees and protections, including: (i) duty of confidentiality in relation to their identity; (ii) prohibition of any form of retaliation; and (iii) exclu - sion of any form of disciplinary, civil, administrative or criminal liability attributable to them (except in case of illicit acquisition of information and documentation). In specific cases, whistle-blowers can make reports via an external channel: (i) if the entity failed to com - ply with the requirements of the internal channel; (ii) if a report made via the internal channel did not (or would likely not) receive appropriate follow-ups or would imply some form of retaliation; (iii) if the breach amounts to an imminent or evident threat to the public interest; and (iv) if the whistle-blower suffered a form of retaliation. While external reporting is specifically provided for in the Directive, Italy has selected ANAC as the entity in charge of its monitoring. ANAC conducts an inde - pendent investigation and follows up on such reports or forwards them to the competent administrative and judicial authorities. ANAC is also tasked with apply - ing administrative pecuniary sanctions in case of non- compliance with certain requirements under Decree 24/2023 (including in case of retaliation against the whistle-blower). Decree 24/2023 thus calls for a co-ordinated effort between private entities and public enforcement authorities to prevent misconduct. Public and private entities are responsible for managing first-level report - ing channels, while ANAC acts as a second-level con - troller to detect and follow up on any shortcomings in these channels, in line with its established role and authority within Italy’s anti-corruption system. The protection regime under Decree 24/2023 has a particular impact on the fight against corruption. Decree 24/2023 provides all potential whistle-blowers with clear and relatively easy-to-use tools to report misconduct that would otherwise be difficult to detect. As most corrupt practices essentially consist of agree - ments between a public official and one or more pri - vate individuals not immediately or overtly affecting private third parties, their detection is especially com -
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