In implementation of Directive (EU) 2019/1937, Legislative Decree no. 24 of March 10, 2023, has been issued concerning the “protection of persons reporting breaches of European Union law and provisions on the protection of persons reporting violations of national legal provisions”.
The decree applies to subjects in both the public and private sectors. With specific reference to the private sector, the legislation extends protections to whistleblowers who have employed an average of at least fifty subordinate workers in the last year or, even below this limit, to entities dealing with the so-called ‘Sensitive Sectors’ (services, products, and financial markets, prevention of money laundering or terrorist financing, transport security, and environmental protection) and those adopting organizational and management models pursuant to Legislative Decree no. 231/2001.
The protection of whistleblowers operating in the private sector, as envisaged by Legislative Decree no. 24/2023, imposes the obligation to establish reporting channels for entities in the same sector that meet at least one of the following conditions:
- Employed, in the last year, an average of at least fifty subordinate workers with indefinite or fixed-term contracts.
- Engage in specific sectors (services, products, and financial markets, prevention of money laundering or terrorist financing, transport security, and environmental protection), even if they have not reached the average of at least 50 subordinate workers with indefinite or fixed-term contracts in the last year.
- Adopt organizational and management models as per Legislative Decree no. 231/2001, even if they have not reached the average of at least 50 subordinate workers with indefinite or fixed-term contracts in the last year.
WHAT CAN BE REPORTED
Behaviors, acts, or omissions that harm public interest or the integrity of public administration or private entities, such as administrative, accounting, civil, or criminal wrongdoings.
Newton Trasformatori, with the support of Swascan and the open-source platform GlobaLeaks (https://www.globaleaks.org/), makes available internally to the company access to Wallbreakers, the whistleblowing portal, at this address:
CONDITIONS FOR REPORTING
Reasonableness: at the time of reporting to the authority or accounting entity or public disclosure, the reported or reporting person must have reasonable and well-founded grounds to believe that the information on the reported, publicly disclosed, or reported violations is true and falls within the scope of the regulations.
Method: reporting or public disclosure must be made using the channels provided in the REPORTING CHANNELS section.
REPORT MANAGEMENT PROCEDURES
The reporting manager, whether internal or external, upon receiving a qualified report, must carry out the following conduct and activities:
- send notification of the receipt of the report within 7 days, unless explicitly requested otherwise by the reporting person;
- initiate and maintain communications with the reporter, through which they may request any clarifications or documentation, to assess, among other things, whether the reporter falls within the protected subjects under legislative decree, whether the content of the report is covered by whistleblowing regulations, and the relevance of the report to the work context;
- preliminarily assess the manifest unfoundedness of the report, whether the reported information is not already public knowledge, and whether the information provided by the reporter does not solely derive from rumors or hearsay;
- follow up on the report if deemed actionable and relevant within the terms outlined above, and take appropriate actions to assess the actual existence of the reported fact and the findings of the investigations;
- possibly adopt suitable measures, such as forwarding the report to offices, bodies, or competent authorities for the initiation of necessary disciplinary, civil, or criminal proceedings;
- provide feedback to the reporter within 3 months, or 6 months if justified, from the date of receipt of the report or from the expiration of the 7 days from receipt;
- in any case, communicate the final outcome of the report to the reporting person.
PROTECTION AND CONFIDENTIALITY OF WHISTLEBLOWERS
The identity of the whistleblower cannot be disclosed to persons other than those competent to receive or follow up on reports.
Protection extends not only to the name of the whistleblower but also to all elements of the report, from which the identification of the whistleblower can be derived, even indirectly.
The report is exempt from access to administrative acts and the right of generalized civic access.
Privacy protection is extended to the identity of individuals involved and mentioned in the report until the conclusion of proceedings initiated due to the report, in accordance with the same guarantees provided in favor of the reporting person.
The rights under articles 15 to 22 of Regulation (EU) 2016/679 can be exercised within the limits provided for in Article 2-undecies of Legislative Decree no. 196 of June 30, 2003.
Internal and external reports and related documentation are retained for the time necessary for the processing of the report and in any case, not beyond 5 years from the date of communication of the final outcome of the reporting procedure, in compliance with the confidentiality obligations under European and national legislation on the protection of personal data.
For everything concerning the determination of retaliation and the protection of other subjects from retaliation, please refer to the dedicated page on the ANAC website.
NON-PUNISHABILITY OF WHISTLEBLOWERS
Those who disclose or disseminate information about violations are not punishable:
- if the information is covered by a duty of secrecy, other than the forensic or medical professional duty, or
- if it relates to the protection of copyright, or
- if it pertains to the protection of personal data, or
- if, at the time of reporting, denouncing, or disclosing, there were reasonable grounds to believe that the disclosure or dissemination of information was necessary to make the report and it was made in the manner required by law.
LOSS OF PROTECTIONS
Protections are not guaranteed when it is established, even by a first-instance judgment,
- the whistleblower’s criminal liability for the offenses of defamation or slander or similar offenses committed through reporting to the judicial or accounting authorities, or
- their civil liability, for the same reason, in cases of willful misconduct or gross negligence.
In such cases, the whistleblower may be subject to disciplinary sanctions.
SUPPORT MEASURES FOR WHISTLEBLOWERS
ANAC establishes a list of Third Sector entities that provide whistleblowers with support measures (information, assistance, and free consultations) and that carry out, according to the provisions of their statutes, activities as per Legislative Decree no. 117 of July 3, 2017.
SANCTIONS APPLICABLE BY ANAC ANAC
From €10,000 to €50,000 when it is found that retaliations have occurred or when it is determined that the reporting has been obstructed or attempted to be obstructed or that the confidentiality obligation has been violated;
From €10,000 to €50,000 when it is found that reporting channels have not been established, procedures for making and managing reports have not been implemented, or the adoption of such procedures is not in accordance with legal requirements, as well as when it is found that the verification and analysis of received reports have not been carried out;
From €500 to €2,500, in case of loss of protections, unless the whistleblower has been convicted, even in the first instance, for the offenses of defamation or slander or similar offenses committed through reporting to the judicial or accounting authorities.