The Legislative Decree No. 24 of 10th March 2023 became effective in July this year. It introduced new provisions on the protection of those who report violations of European or Italian law, whether internally or externally. This phenomenon is called "whistleblowing", which means reporting information confidentially. A "whistleblower" is actually defined as an individual who reports to the company's competent bodies information on violations, discovered during his/her professional tasks, regardless of their nature, or whether the employment relationship has meanwhile ended or not yet started.
The objective scope of the subject is wide in its own, but the legislative reform has further extended its application scope.
In fact, the Legislative Decree No. 24/2023 expressly provided for the application of the new whistleblowing regulation even to the private sector, while previously it was expressly regulated only in the public sector (although several private companies had already introduced whistleblowing channels, de facto).
Nowadays, under the Legislative Decree No. 24/2023, private entities are required to implement whistleblowing, if they meet even one of the following requirements:
- during the last year, they have employed an average of at least 50 wage earners under permanent or fixed-term contracts;
- they are among those obliged to comply with legislation on financial services, products and markets, on the prevention of money laundering and terrorist financing, on environmental protection and transport safety (even if they have not reached the threshold of 50 employees);
- they are subject to Legislative Decree No. 231/2001 and they have to adopt organisational and management models provided therein (even if they have not reached the threshold of 50 employees).
In the new legislation, it is particularly relevant the obligation for all addressees to provide two different channels for whistleblower's reports: an external and an internal one.
The external channel is managed by ANAC (National Anti-Corruption Authority) and it is actually a second-level channel, essentially meant to be used when internal reporting has been ineffective.
The internal channel has the most significant impact for companies, as it has to be set up, regulated and managed internally, in compliance with the criteria imposed by Legislative Decree No. 24/2023
In order to comply with legal provisions, the internal channel shall, among other things:
- ensure the confidentiality of the identity of the reporter, of the person involved and of the individual mentioned therein;
- allow written or oral formulation of the report;
- provide for internal management of the report, through an independent, specific and properly trained person or office/department, or provide for an external management, entrusting it to third parties.
Within the next seven days after the report, the company shall issue to the whistleblower an acknowledgement of receipt and give him a feedback on the reported matters, within the following three months.
All these provisions shall be integrated within the newly drafted Organisational Model "231", under Legislative Decree No. 24/2023.
In case of pre-existing Organisational Models "231", it will be necessary to verify whether a suitable whistleblowing channel already exists and, if needed, to adapt the Model and related procedures to the new legislation.
Lastly, it should be noted that the new Legislative Decree No. 24/2023 has imposed tight deadlines for the adaptation of internal channels of the Organisational Model 231 or for their creation, when it is mandatory by law.
- Private-sector entities that employed in the last year an average of 50 to 249 employees, under permanent or fixed-term contracts, will have to comply by 17th December 2023;
- Private entities that employed in the last year an average of more than 249 employees, under permanent or fixed-term contracts, should have already complied by 15th July 2023.
Even from this very brief analysis, it emerges clearly how the recent reform has confirmed the importance of whistleblowing channels within the Organisational Models "231, and how they represent a fundamental legal instrument for companies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.