On November 7, 2024, the Italian Anticorruption Authority (ANAC or the Authority) made available for a preliminary consultation the “Draft Guidelines on Whistleblowing Internal Reporting Channels” (the Draft Guidelines), aimed at providing additional clarifications as to the appropriate management of internal reporting channels under Decree No. 24/2023 (the Whistleblowing Decree). ANAC is now collecting comments and remarks from relevant stakeholders (to be provided by 9 December 2024), before finalizing and amending (where necessary) the Draft Guidelines.
The new Draft Guidelines are intended to update the guidelines originally published on July 12, 2023 with reference to external reporting channels. The main updates are as follows:
- Detailed guidance is provided on the role attributed to trade unions and how to get them involved in the activating procedure of the new internal reporting channels, as requested by the Whistleblowing Decree. In particular, ANAC specifies that the involvement of trade unions is “purely informative” in nature, aimed at acquiring any comments on the implementation of the internal channel. The deadline given to trade unions to submit their comments is not peremptory in nature and the opinion expressed by the trade unions is not binding. ANAC also clarified that in companies where there are no in-house trade union representatives (RSA) or a unitary trade union representation (RSU), the company must inform the local units of the most representative trade union associations at national level.
- It is pivotal to establish an internal reporting channel in oral form (telephone lines, voice messaging systems, face-to-face meetings), alternative to the written one, as well as suitable ways of tracking oral reports (e.g., by recording or minutes). With reference to written reports, the use of e-mail (ordinary or certified) is inadequate to guarantee confidentiality of the identity of the whistleblower (also because of the risk of collection by default of the logs related to the sending and receiving of e-mails, further aggravated in the event that the whistleblower uses, for the purpose of filing the report, the e-mail provided by the employer).
- Medium-sized groups of companies (up to 249 employees) may share the internal reporting channel, through the establishment of a single platform. However, the group platform must be branched at the group level, allowing the whistleblower to choose from a list the companies to which the report can be addressed. Large groups (more than 249 employees) cannot share a platform. Instead, they can opt for outsourcing the service of receiving and managing reports to a single external provider.
- Substitutes/deputies for the managers of the reporting channels must be identified, not only in view of possible conflicts of interest, but also in the event of a mere temporary absence of the person identified as the manager.
With reference to the necessary adaptation of the compliance systems (MOG 231) provided for under Italian Legislative Decree No. 231/2001 (the 231 Decree), the following are the main priorities identified by ANAC:
- The adaptation of the internal reporting channel: it is up to the company to decide whether to keep separate or merge (i) the channel for reporting violations of Decree 231 and the MOG 231 to the Supervisory Board, which must be established pursuant to Art. 6, para. 2-bis of Decree 231 (the 231 channel), and (ii) the channel for reporting violations provided for in the Whistleblowing Decree (the Whistleblowing channel). However, the Authority recommends establishing a single channel, with a view to simplifying and rationalizing the existing safeguards. In the case of channel separation, ANAC specifies that the Supervisory Board should still ask the person reporting through the 231 channel whether he or she intends to benefit from the protections guaranteed by the law in favor of the whistleblower. The Draft Guidelines also provide some suggestions to ensure coordination between the manager of the Whistleblowing channel and the Supervisory Board (if they do not coincide).
- The explicit indication of the prohibition of retaliation, against the reporter and those close to him/her, and;
- The update of the disciplinary system, with reference to sanctions against those responsible for violations of the rules set up to protect whistleblowers and ensure the proper functioning of the whistleblowing reporting channels.
The Draft Guidelines also remind that the failure to update MOG 231 in order to comply with the Whistleblowing Decree may result in negative effects, including the following:
- Lacking one of the requirements of effectiveness, the MOG 231 may not be suitable for exempting the company’s liability.
- Whistleblowers would lack a reporting tool that is a form of protection recognized by the law.
- The recipients of the MOG 231 would be entitled to submit reports using the external channel established at ANAC, with the consequence that the violations will not be addressed promptly within the company itself.
- The company would be exposed to the risk of the imposition of sanctions by ANAC.
Finally, specific guidance is also provided by ANAC with reference to no-profit entities.
It is now to be seen whether the Draft Guidelines will be further amended to take into account the possible comments from the stakeholders. Our team will continue monitoring developments in the process for the approval of ANAC’s revised guidelines.
