ITALY Trends and Developments Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Studio Legale
by a cultural evolution – ie, the installation and progressive diffusion among economic opera - tors of a culture of compliance as an important element for both enterprise risk management and the creation of sustainable medium- and long-term value. As corporations operating in Italy began to understand the impact of Decree 231/2001 on their operations, they adopted the measures out - lined in the Decree to mitigate the risk of unlawful conduct and, ultimately, avoid corporate liabil - ity. Over time, this led to the development of new business ethics and corporate governance standards, resulting in a paradigm shift. Corpo - rations were not only strongly incentivised to prevent employee misconduct, but they began to view Model 231 as more than just a collec - tion of “paper tools” aimed at demonstrating the absence of organisational faults in criminal proceedings. Instead, the model evolved into a real corporate governance instrument designed to integrate regulatory compliance into the daily management of business activities. A positive future outlook for Italy in relation to corruption will strongly depend on the impact of two main tools: (i) Italy’s whistle-blower pro - tection regime and (ii) artificial Intelligence (AI). The first of these tools is already established within the Italian system but has been recently reformed and still requires full implementation to reach its full potential. The second tool, however, is still in the early stages of consideration by reg - ulators and economic players, but is expected to have a revolutionary impact in both the public and private sectors. Whistle-Blowing The Italian government recently adopted Leg - islative Decree 10 March 2023, No 24 (“Decree 24/2023”), a framework of rules for reporting
suspect illicit behaviours within public and pri - vate entities (“whistle-blowing”) and for the pro - tection of those who make the reports (“whistle- blowers”) from any form of retaliation, 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 pro - tection regime applies to the following. • Public sector entities. • Private sector entities that, in the last year: (a) employed an average of at least 50 employees 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, estab - lished 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
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