Italian Legislation on Whistleblowing and the EU Directive: A Comparison

1. the Italian legislation on whistleblowing and the EU Directive April 16, 2019a comparison lauravalli ANAC

2. Whistleblowing: Two perspectives the «Government» perspective: whistleblowingasaNanticorruptiontool the «Human rights» perspective: whistleblowingasexpressionof the right to freedom of speech • U.N Convention on the fightagainstcorruption • Council of Europe civil law convention on corruption • OECD anti bribery convention • Council of Europe • European Court of Human Rights • European Parliament

3. Italian law and EU Directive:Two perspectives Italianlegislation UE Directive • The Anti-corruption Law No 190/2012 includes provisions on whistleblowing protection within the anticorruption two-tier strategy for the public sector • The new Law No 179/2017 strengthens pre-existing whistleblower protections for public-sector employees, and extends those same protections to the private sector • Persons who report information about threats or harm to the public interest obtained in the context of their work-related activities make use of their right to freedom of expression.

4. The public interest Italian legislation UE directive A public employee who reports illegal or unethical conduct in the public interest shall not be retaliated against……… A broad notion of “public interest” including, as a minimal standard, violations of law and human rights, as well as risks to public health and safety and to the environment

5. the whistleblower Italian legislation Eu directive • Employees of public administrations (Ministries, Regions, Municipalities, judges, military personnel, state police forces, diplomatic staff, etc.) • Employees of public-economic entities • Employees of private-law entities subject to public control • Employees and contractors of companies supplying goods, works or services to the public administration • EU citizens or third-country nationals • Part-time and fixed-term contract workers • Persons with a contract of employment or employment relationship with a temporary agency • Self-employed persons providing services, freelance, contractors, subcontractors and suppliers • Persons whose work-based relationship ended • Candidates for employment or for providing services to an organization • Volunteers and paid or unpaid trainees

6. Protected disclosures Italian LAW EU directive work-related unlawful behaviors and ethical misconduct, including (but not limited to): • criminal conducts • violations of codes of conduct • mismanagement of public resources • nepotism • accounting irregularities • violation of environmental and occupational safety regulations • breaches which have already taken place, breacheswhich have not yet materialized, but are very likely to be committed, acts or omissions which the reporting person has reasonable grounds to consider as breaches of Union law as well as attempts to conceal breaches • protection is warranted also for persons who do not provide positive evidence but raise reasonable concerns or suspicions • protection should not apply to the reporting of information which is already fully available in the public domain or of unsubstantiated rumors and hearsay • the notion of breach also includes abusive practices, as determined by the case law of the European Court of Justice, namely acts or omissions which do not appear to be unlawful in formal terms but defeat the object or the purpose of the law

7. Reporting channels Italian law Eu directive Employees may report a violation either to: • The officer charged with corruption prevention and transparency in each public administration • The National Anticorruption Authority (ANAC), and • The judicial or accounting authority • Internal reporting is the first point of call for whistleblowers; that can be omitted if the whistleblower has grounds to believe that an internal report could jeopardize subsequent investigations into the company’s alleged wrongdoing • External reporting to the competent national authorities if the company does not respond to the report within three months or if the internal route has been otherwise exhausted • Media reportingif the whistleblower first reported internally and externally or directly externally, but no timely action has been taken by either the company or the public authorities, or if the breach must be disclosed immediately as there is an imminent danger to the public interest

8. Protection of confidentiality Italian law EU directive • In the disciplinary proceedings: the identity of the whistleblower can not be disclosed without his/her consent • In the criminal proceedings: the identity of the whistleblower is covered by secrecy throughout the closure of the preliminary investigations (Article 329 cpp.) • In the proceeding before the Court of Audit: the identity of the whistleblower can not be disclosed until the end of the preliminary phase • Confidentiality is not protected if the whistleblower is found guilty of slander, defamation or other crimes committed in relation to the complaint, or when her/his civil liability is established for malice or gross negligence • The identity of every reporting person, concerned person, and third persons referred to in the report (e.g. witnesses or colleagues) is protected at all stages of the procedure • The duty of professional secrecy and confidentiality when transmitting the data both inside and outside of the competent authority is complied with • The identity of the reporting person may be disclosed only where this is a necessary and proportionate obligation required by Union or national law in the context of investigations by authorities or judicial proceedings, in particular to safeguard the rights of defense of the concerned persons • Protection should not apply to the reporting of information which is already fully available in the public domain or of unsubstantiated rumors and hearsay

9. Protection from retaliation Italian law EU directive Apublic employee who reports illegal or unethical conduct in the public interest shall not be retaliated against through any sanctions, dismissal, demotion, transfers to other offices, or other organizational measures having a negative effect on his/her working conditions • Broad definition: any act or omission occurring in the work-related context which causes detriment to the wb • Reporting persons should be protected against any form of retaliation • direct or indirect • taken, recommended or tolerated by their employer or customer/recipient of services and by persons working for or acting on behalf of the latter, including co-workers and managers in the same organization or in other organizationwith which the reporting person is in contact in the context of the work-related activities • taken against the reporting personor • the legal entity that the reporting person owns, works for or is otherwise connected with in a work-related context • facilitators or co-workers or relatives of the reporting person who are also in a work-related connection with the latter’s employer or customer/recipient of service

10. BURDEN of proof Italian law Eu directive The burden of proof is on the employer to prove that the (alleged) retaliatory measure was not connected to the wb complaint The whistleblower who has been dismissed because of his or her report is entitled to reinstatement Once the reporting person demonstrates that he orshe made a report or public disclosure in line with the Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then demonstrate that the action taken was not linked in any way to the reporting or the public disclosure

11. Private sector Italian law Eu directive Only private entities which have already introduced compliance programs (which can exclude corporate liability) shall set up a reporting system for whistleblowers, including: • one or more channels allowing employees to internally report illegal conduct or violations, in the interest of the protection of the entity's integrity • at least one alternative reporting channel which would guarantee the confidentiality of the whistleblower’s identity, and • appropriate measures to protect the whistleblower’s identity and to maintain the confidentiality of information in any context subsequent to reporting, to the extent that anonymity and confidentiality are legally enforceable. Private legal entities with at least 50 employees or with an annual turnover or total assets of more than €10 million must adopt internal reporting channel

12. The role of anac • Regulatory powers: ANAC shall issue guidelines on the procedures for submitting and managing whistleblowers’ claims • Investigative powers: ANAC may conduct fact-finding investigation on the claim brought by the whistleblower as well as on the discriminatory measures • Sanctioning powers: • In the event of detrimental treatment against the whistleblower adopted by the public administration, there may be pecuniary administrative sanctions ranging from €5,000 to €30,000 In the event of inappropriate reporting procedures and systems for managing reports, there may be pecuniary administrative sanctions ranging from €10,000 to €50.000 In the event of failure to properly examine and process received reports, there may be a pecuniary administrative sanction ranging from €10,000 to €50.000

13. ANAC’s IT system for intake and management of complaints • Allows public employees to report any misconduct with an user-friendly tool; • Provides complainants with the possibility to communicate with ANAC throughout the process; • Protects the identity of the complainant; • Ensures the confidentiality of the information provided by the complainant; • Allows the ANAC team (receiving structure) to receive the complaint, communicate with the complainant and collect data.

14. Types of complaints (Jan-sept 2018) • Corruption, abuse of power 21% • Procurement irregularities 20% • Retaliatory measures 15% • Irregularities in appointments to public offices 11% • Irregularities in selections for public offices 11% • Failure in implementing the PNA 8% • Mismanagement of public resources 7% • Conflict of interest 5%