INSTRUCTIONS FOR MAKING A WHISTLEBLOWING REPORT
1. INTRODUCTION
With Italian Legislative Decree 24/2023, which came into force on 30 March 2023 and took effect for the Organisation as of 17 December 2023, Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law and on the protection of persons who report breaches of national laws was implemented in the Italian legal system.
Many new features were introduced, which concerned various aspects such as: the scope of the breaches, the list of whistleblowers, the activation of reporting channels and how to use them, the involvement of ANAC (Italian National Anti-Corruption Authority), the extension of the protective measures to persons or entities accompanying the whistleblower, and so forth.
The Organisation has drawn up these Instructions in order to provide the individual who intends to report a fact pursuant to the aforementioned Decree with clear information on the channel that can be used, the procedure and the prerequisites for making an internal report as well as the channel that can be used, the procedure and the prerequisites for making an external report.
These Instructions will be made known to potential whistleblowers, including by publishing them on the Organisation’s Website.
2. WHO CAN SUBMIT A REPORT AND ENJOY THE PROTECTION PROVIDED?
The person reporting a fact, referred to as the ‘whistleblower’, is any individual who makes a public disclosure or whistleblowing of information on violations acquired in his or her work environment. More specifically, reference is made:
to employees of the Organisation regardless of the type of employment contract (e.g. open-ended, part-time, intermittent, fixed-term, temporary, supply, apprenticeship, ancillary, occasional work, etc.);
to self-employed workers, collaborators, suppliers of goods and/or services or those performing work for third parties on behalf of the Organisation;
to freelance professionals and consultants who work for the Organisation (e.g. commercial agents, lawyers, engineers, etc.);
to volunteers and trainees, whether paid or unpaid, who work for the Organisation;
to shareholders and persons with administrative, management, control, supervisory or representative functions, even de facto, within the Organisation.
It should be emphasised that the report may be made not only during the relationship, but also during any probationary period or in any case prior to the actual establishment thereof (e.g. in the pre-contractual/selection phase) or after the termination of the relationship itself, provided that the information has been acquired during the latter.
3. WHICH OTHER PERSONS ARE TAKEN INTO ACCOUNT AND TO WHOM DO THE PROTECTIONS APPLY?
Among the new features introduced by the aforementioned Decree is the fact that the legislator has for the first time focused also on other persons who may be involved in the matter for various reasons and has extended the protections to them as well. More precisely, these are:
the facilitator, i.e. any individual belonging to the same work environment as the whistleblower, who assists, i.e. provides support and/or advice, to the latter in the reporting process (e.g. an office colleague);
people belonging to the same work environment as the whistleblower (of the person making the report or public disclosure), i.e. people linked by a network of relations arising from the fact that they work, or have worked in the past, in the same work environment as the whistleblower, and who have a stable emotional (e.g. cohabiting) or kinship link with the whistleblower up to the fourth degree of kinship;
work colleagues of the whistleblower (of the person making the report or public disclosure), who work in the same work environment, so their employment relationship must not have ceased, and who have a habitual and current relationship with him, i.e. a relationship that is not merely sporadic, occasional, episodic or exceptional, but is ongoing, protracted over time and with such continuity as to give rise to a relationship of community/friendship;
entities owned, exclusively or partially but predominantly, by the whistleblower (of the person making the report or public disclosure) or for which the whistleblower works and entities operating in the same work environment as such person.
4. WHAT IS A REPORT?
A Report is a written or oral disclosure of information on violations submitted through the reporting channels that will be discussed in more detail below.
5. WHAT CAN BE REPORTED AND WHAT, INSTEAD, DOES NOT FALL WITHIN THE SCOPE OF THE WHISTLEBLOWING LEGISLATION?
In view of the characteristics of the Organisation, as also indicated in the ANAC Guidelines approved by Resolution no. 311/2023.
The whistleblower may report through the internal or external reporting channel (and also public disclosure or complaint to the competent Authority) any information acquired in his/her work environment (see paragraph 2) on breaches of EU law and national transposing legislation committed – i.e. acts, conduct or omissions – or on breaches of EU law and national transposing legislation which, on the basis of factual evidence, could be committed (e.g. irregularities, anomalies, symptomatic indicators, etc.), including well-founded suspicions and those elements concerning conduct aimed at concealing violations.
More specifically, while reference must inevitably be made to the legislation for any details, the following may be reported:
offences falling within the scope of European Union or national acts relating to the following areas: public procurement; services, products and financial markets and prevention of money laundering and terrorist financing; product safety and conformity; transport safety; environmental protection; radiation protection and nuclear safety; food and feed safety and animal health and welfare; public health; consumer protection; privacy and protection of personal data and security of networks and information systems;
acts or omissions affecting the financial interests of the Union;
acts or omissions affecting the internal market;
acts or conduct that frustrate the object or purpose of the provisions of Union acts.
Any retaliation suffered may also be reported to ANAC.
A report, on the other hand, cannot concern information that is manifestly unfounded or that relates to information that is already fully in the public domain or that relates to
information acquired solely from unreliable sources (gossip or rumours).
As regards expressly excluded content, these include:
objections, claims or requests of a personal nature that relate exclusively to the individual’s work or employment relations, including relations with hierarchically superior figures;
reports of violations where they are already mandatorily regulated by other sources of law that already provide for reporting procedures;
reports of violations relating to national security, as well as procurement relating to defence or national security aspects, unless such aspects are covered by the relevant secondary legislation of the European Union.
In any case, the legislator has expressly stated that the legislation in question is without prejudice to the application of national and European provisions on: classified information; medical or forensic professional secrecy; secrecy of court deliberations; rules of criminal procedure; autonomy and independence of the judiciary; national defence and public order and security; and the exercise of workers’ rights.
Finally, it should be noted that the reasons that have prompted the person to submit a report are irrelevant for the purposes of processing the report and protecting that person.
6. WHAT ARE THE MINIMUM REQUIREMENTS FOR A REPORT?
Generally speaking, a report should be as detailed as possible. In summary, it must clearly show the following:
the general details of the whistleblower;
the circumstances of time and place in which the reported fact occurred;
a description of the fact;
the general details or other elements that make it possible to identify the person to whom the reported facts can be attributed.
In order to ensure an adequate level of completeness and to facilitate the preliminary investigation activities, it is advisable for the person to attach any documents that may provide elements to substantiate the reported facts, as well as the indication of other persons potentially aware of the facts.
Without prejudice to the above, the Organisation has prepared a special form for whistleblowing reports, which can be used as a guide for those who cannot or do not wish to use this document directly to forward the report.
In any case, where necessary, anyone handling such reports will request additional elements.
7. CAN REPORTS BE ANONYMOUS?
An anonymous report refers to a report from which the identity of the whistleblower cannot be established. Such reports fall outside the scope of the whistleblowing legislation and will be treated by the Organisation in the same way as ordinary reports.
Nevertheless, the Organisation will keep a record of anonymous reports received and retain the relevant documentation.
8. WHAT ARE THE REPORTING PROCEDURES?
The Organisation has set up a specific internal communication channel, which ensures the confidentiality of the identity of the whistleblower and anyone else involved in the procedure.
The whistleblower may send the report by ordinary post (preferably, by registered mail without return receipt, addressed to the Manager with the wording “Whistleblowing personnel confidential” or similar) to the address Via P. Zorutti 11 – Zona Ind. Le Forcate 33074 FONTANAFREDDA (PN).
Inside the envelope marked as above, there must be two other sealed envelopes: one containing the personal data of the whistleblower and a photocopy of his/her ID card or other identification document; another containing the report and any supporting documentation.
Although it is not compulsory, it is advisable to use the form prepared by the Organisation for Whistleblowing Reports and also made available on the company Website at this LINK. In the event that you are unable or do not wish to use this document, please remember that the report must contain the minimum elements indicated above.
In addition to the above method, using the same communication tool as above, it is always possible to request a direct meeting, which will be arranged as soon as possible or within a reasonable period of time.
To ensure the utmost confidentiality, it is advisable not to use the Organisation’s own equipment to prepare the report (e.g. computers, tablets, printers, internet, etc.). For the same reasons, it is also advisable to make the report outside working hours.
9. WHO IS IN CHARGE OF MANAGING THE IN-HOUSE REPORTING CHANNEL?
The channel is managed by the lawyer Zanette Romina, P.I. 01595270933, with chambers in 33170 Pordenone, PN, Viale Trento, 14.
10. WHAT HAPPENS IF THE REPORT IS COLLECTED BY A PERSON OTHER THAN THE PERSON TO WHOM THE ORGANISATION HAS ASSIGNED THE TASK OF HANDLING REPORTS?
Any person who receives a whistleblowing report, if he/she is not in charge of handling it, must, no later than 7 days from its receipt, forward the report to the person in charge of handling it, and must at the same time notify the whistleblower that the report has been forwarded.
11. WHAT HAPPENS AFTER RECEIPT OF A REPORT OR MEETING REQUEST?
The person in charge of handling whistleblowing reports shall, within 7 days of receipt of the report or meeting request, send the whistleblower an acknowledgement of receipt, taking charge of the report, or inform the whistleblower of the date, time and place of the meeting. The only reports that are not followed by an acknowledgement of receipt are those received during such a meeting.
After receipt, the report will be assessed for admissibility/procedibility/receivability. In the event of a negative outcome, the report cannot be followed up. Otherwise, the preliminary investigation phase will begin.
Within 3 months from the date of the acknowledgement of receipt or, failing such an acknowledgement, within 3 months from the expiry of the period of 7 days from the submission of the report, the whistleblower shall receive a final acknowledgement indicating the measures taken or to be taken, the reasons for the choice and any other necessary information.
12. WHEN AND HOW CAN REPORTS BE MADE THROUGH THE EXTERNAL REPORTING CHANNEL?
The above-mentioned persons may also make use of the external reporting channel made available by ANAC. A report may be made using this channel if:
the internal communication channel is either not mandatory or, even if it is, it is not active or it is active but not compliant;
a report has already been made through the internal communication channel, but has not been acknowledged (please note that the report must be acknowledged within 7 days from the date of receipt and acknowledged within 3 months from the date of the acknowledgement of receipt or, failing that, within 3 months from the expiry of the 7-day period from the submission of the report);
the whistleblower has reasonable grounds to believe that an internal report would not be effectively followed up (e.g. in the event of a conflict of interest) or could lead to a risk of retaliation;
the whistleblower has reasonable grounds to believe that the breach may constitute an imminent or obvious danger to the public interest.
The persons described above may also notify ANAC exclusively of the retaliation they believe they have suffered as a result of the report, complaint or public disclosure made.
In order to make use of the external communication channel to ANAC, and to obtain further clarifications on the characteristics and details of this channel, the procedure and the prerequisites for submitting a report, see the tools and clarifications set out in the following link, which refers directly to the institutional Website of ANAC https://www.anticorruzione.it/-/whistleblowing.
The following link, on the other hand, gives direct access to the platform for submitting a report to ANAC: https://whistleblowing.anticorruzione.it/#/.
13. WHAT IS MEANT BY PUBLIC DISCLOSURE?
Public disclosure is understood as the public dissemination of information on violations (see above regarding what may or may not be the subject of a report) through the press, electronic media or other means of dissemination capable of reaching a large or even indeterminate number of people (e.g. television, radio, social networks, use of the internet in general, etc.).
14. DOES A PERSON MAKING A PUBLIC DISCLOSURE ALWAYS BENEFIT FROM THE PROTECTIONS DESCRIBED ABOVE? WHAT ABOUT IN THE CASE OF A COMPLAINT SUBMITTED TO THE JUDICIAL AUTHORITIES?
In the case of public disclosure, a person benefits from the protections provided for in the above-mentioned Decree if at least one of the following conditions is met:
the whistleblower, after having made an internal report, to which he/she did not receive a reply within the prescribed time limit, has made an external report to ANAC and has furthermore not received a reply within a reasonable time-frame;
the whistleblower has made an external report to ANAC and has not received feedback on the measures envisaged or adopted to follow up the report within a reasonable time-frame;
the person has reasonable grounds to believe, based on concrete circumstances (i.e. not on mere inferences), that the breach may represent an imminent or obvious danger to the public interest;
the person has reasonable grounds to believe that the external report to ANAC may involve a risk of retaliation or may not be effectively followed up.
Any person making a public disclosure is to be regarded as being distinct from the source of information for journalists.
The legislator has made it possible for people to approach the competent judicial authorities directly and, also in this case, to enjoy the same protections provided for in the above-mentioned Decree.
Any person with the status of public official or person in charge of a public service shall not be exempt from the provisions of Articles 361 and 362 of the Italian Criminal Code, and Article 331 of the Italian Code of Criminal Procedure for making an internal or external report.
15. WHAT PROTECTIONS AND SUPPORTIVE MEASURES ARE PROVIDED FOR UNDER THE WHISTLEBLOWING LEGISLATION?
The system of protection includes: protection of the identity of the whistleblower, the facilitator, the individual(s) indicated as being potentially responsible for the reported conduct, any other person named in the report or in the attached deeds and documents, as well as anyone involved in various capacities in the procedure and in the reported incidents; protection against any retaliation taken by the Organisation as a result of the report, public disclosure or whistleblowing; limitations on liability with respect to the disclosure and dissemination of certain categories of information (e.g. information protected by copyright law, data protected by privacy law, etc.) which apply under certain conditions.
The following is a purely illustrative list of what could be considered retaliation: dismissal, suspension or equivalent measures; downgrading or non-promotion; change of duties, change of workplace, reduction of salary, change of working hours; suspension of training or any restriction on access to training; negative merit notes or references; the adoption of disciplinary measures or any other sanction, including a fine; coercion, intimidation, harassment or ostracism; discrimination or otherwise unfavourable treatment; failure to convert a fixed-term employment contract into a permanent employment contract, where the employee had a legitimate expectation of such conversion; non-renewal or early termination of a fixed-term employment contract; damage, including to the person’s reputation, particularly on social media, or economic or financial harm, including loss of economic opportunities and loss of income; improper listing on the basis of a formal or informal sector or industry agreement, which may result in the person being unable to find employment in the sector or industry in the future; early termination or cancellation of a contract for the supply of goods or services; cancellation of a licence or permit.
Supportive measures are envisaged in the form of information, assistance and advice free of charge on how to submit a report and on the protection from retaliation offered under national and EU legislation, on the rights of the person concerned, and on the terms and conditions of access to legal aid. A list of Third Sector entities that provide whistleblowers with support measures may be obtained from ANAC.
16. HOW WILL THE ORGANISATION PROCESS THE PERSONAL DATA OF PERSONS INVOLVED IN WHATEVER CAPACITY?
The Organisation will process data in accordance with the privacy statement made available, also, on the company’s Website at this LINK. In any event, the data subject may at any time ask the Organisation for a copy of the aforementioned notice or for clarification regarding the processing of his or her personal data.
Fontanafredda 15 December 2023
