Whistleblowing
LA SEGNALAZIONE WHISTLEBLOWING – D. Lgs. 24/2023
COSA SI PUÒ SEGNALARE
Comportamenti, atti od omissioni che ledono l’interesse pubblico o l’integrità dell’amministrazione pubblica o dell’ente privato e che consistono in:
Canali di segnalazione
Scelta del canale di segnalazione
I segnalanti possono utilizzare il canale esterno (ANAC) quando:
I segnalanti possono effettuare direttamente una divulgazione pubblica quando:
Condizioni per la segnalazione
Ragionevolezza
Modalità
Valutazione dell’interesse pubblico e dell’interesse personale del segnalante
Le segnalazioni devono essere effettuate nell’interesse pubblico o nell’interesse alla integrità dell’ente.
I motivi che hanno indotto la persona a segnalare, denunciare o divulgare pubblicamente sono irrilevanti ai fini della sua protezione.
MODALITÀ DI GESTIONE DELLE SEGNALAZIONI
MIB Italiana deve:
MISURE DI PROTEZIONE
PROTEZIONE DELLA RISERVATEZZA DELLE PERSONE SEGNALANTI
PROTEZIONE DEI DATI PERSONALI
COSA SI INTENDE PER RITORSIONE
DEFINIZIONE
Qualsiasi comportamento, atto od omissione, anche solo tentato o minacciato, posto in essere in ragione della segnalazione, della denuncia all’autorità giudiziaria o contabile, o della divulgazione pubblica e che provoca o può provocare, alla persona segnalante o alla persona che ha sporto la denuncia, in via diretta o indiretta, un danno ingiusto, da intendersi come danno ingiustificato.
Esempi di comportamenti ritorsivi:
Competenza ad accertare la ritorsione
Prova della ritorsione
Protezione da ritorsioni estesa ad altri soggetti
TIPOLOGIE
Non punibilità dei segnalanti
Non è punibile chi riveli o diffonda informazioni sulle violazioni:
se, al momento della segnalazione, denuncia o divulgazione, aveva ragionevoli motivi di ritenere che la rivelazione o diffusione delle informazioni fosse necessaria per effettuare la segnalazione e la stessa è stata effettuata nelle modalità richieste dalla legge.
PERDITA DELLE TUTELE
Le tutele non sono garantite quando è accertata, anche con sentenza di primo grado, la responsabilità penale della persona segnalante per i reati di diffamazione o di calunnia o comunque per i medesimi reati commessi con la denuncia all’autorità giudiziaria o contabile ovvero la sua responsabilità civile, per lo stesso titolo, nei casi di dolo o colpa grave; in tali casi alla persona segnalante o denunciante può essere irrogata una sanzione disciplinare.
THE WHISTLEBLOWING REPORT – Legislative Decree 24/2023
WHAT CAN BE REPORTED
Conduct, acts or omissions that harm the public interest or the integrity of the public administration or private entity and that consist of:
· administrative, accounting, civil or criminal offences;
· unlawful conduct relevant under Legislative Decree 231/2001, or violations of the organisation and management models provided for therein;
. offences falling within the scope of European Union or national acts relating to the following sectors: public procurement; financial services, products and markets and
prevention of money laundering and terrorist financing; product safety and compliance; transport safety; environmental protection; radiation protection and nuclear
safety; food and feed safety and animal health and welfare; public health; consumer protection; protection of privacy and personal data and
security of networks and information systems;
· acts or omissions that harm the financial interests of the Union;
· acts or omissions concerning the internal market;
acts or conduct that defeat the object or purpose of the provisions of Union acts.
Reporting channels
. internal (at the link https://mibitaliaspa.wb.teseoerm.com/#/);
· external (ANAC);
· public disclosure (through the press, electronic media or other means of dissemination capable of reaching a large number of people);
· report to the judicial or accounting authority.
Choosing the reporting channel
Whistleblowers may use the external channel (ANAC) when:
· the reporting person has already made an internal report and it was not followed up;
. the reporting person has reasonable grounds to believe that, if they made an internal report, it would not be effectively followed up or that the
report could lead to a risk of retaliation;
. the reporting person has reasonable grounds to believe that the violation may constitute an imminent or manifest danger to the public interest;
Whistleblowers may make a public disclosure directly when:
. the reporting person has previously made an internal and an external report, or has made an external report directly, and no response was given
within the established timeframe regarding the measures planned or adopted to follow up on the reports;
. the reporting person has reasonable grounds to believe that the violation may constitute an imminent or manifest danger to the public interest;
. the reporting person has reasonable grounds to believe that the external report may entail a risk of retaliation or may not be effectively followed up, due to the
specific circumstances of the case, such as those in which evidence may be concealed or destroyed or in which there is a well-founded fear that the recipient of the
report may be colluding with the perpetrator of the violation or involved in the violation itself.
Conditions for reporting THE WHISTLEBLOWING REPORT – Legislative Decree 24/2023
WHAT CAN BE REPORTED
Conduct, acts or omissions that harm the public interest or the integrity of the public administration or private entity and that consist of:
· administrative, accounting, civil or criminal offences;
· unlawful conduct relevant under Legislative Decree 231/2001, or violations of the organisation and management models provided for therein;
. offences falling within the scope of European Union or national acts relating to the following sectors: public procurement; financial services, products and markets and
prevention of money laundering and terrorist financing; product safety and compliance; transport safety; environmental protection; radiation protection and nuclear
safety; food and feed safety and animal health and welfare; public health; consumer protection; protection of privacy and personal data and
security of networks and information systems;
· acts or omissions that harm the financial interests of the Union;
· acts or omissions concerning the internal market;
acts or conduct that defeat the object or purpose of the provisions of Union acts.
Reporting channels
. internal (at the link https://mibitaliaspa.wb.teseoerm.com/#/);
· external (ANAC);
· public disclosure (through the press, electronic media or other means of dissemination capable of reaching a large number of people);
· report to the judicial or accounting authority.
Choosing the reporting channel
Whistleblowers may use the external channel (ANAC) when:
· the reporting person has already made an internal report and it was not followed up;
. the reporting person has reasonable grounds to believe that, if they made an internal report, it would not be effectively followed up or that the
report could lead to a risk of retaliation;
. the reporting person has reasonable grounds to believe that the violation may constitute an imminent or manifest danger to the public interest;
Whistleblowers may make a public disclosure directly when:
. the reporting person has previously made an internal and an external report, or has made an external report directly, and no response was given
within the established timeframe regarding the measures planned or adopted to follow up on the reports;
. the reporting person has reasonable grounds to believe that the violation may constitute an imminent or manifest danger to the public interest;
. the reporting person has reasonable grounds to believe that the external report may entail a risk of retaliation or may not be effectively followed up, due to the
specific circumstances of the case, such as those in which evidence may be concealed or destroyed or in which there is a well-founded fear that the recipient of the
report may be colluding with the perpetrator of the violation or involved in the violation itself.
Conditions for reporting:
Reasonableness
. At the time of the report or of the complaint to the judicial or accounting authority or of the public disclosure, the reporting person or complainant must have a
reasonable and well-founded belief that the information on the violations reported, publicly disclosed or denounced is true and falls within the scope of the
legislation
Method
. The report or public disclosure must be made using the channels provided (internal, external and public disclosure) according to the criteria indicated above)
Assessment of the public interest and the personal interest of the reporting person
Reports must be made in the public interest or in the interest of the integrity of the entity.
The reasons that led the person to report, denounce or publicly disclose are irrelevant for the purposes of their protection.
HOW REPORTS ARE HANDLED
MIB Italiana must:
. acknowledge receipt of the report to the reporting person within 7 days of its receipt, unless expressly requested otherwise by the
reporting person;
. maintain communication with the reporting person and request further information from them, if necessary;
· diligently follow up on the reports received;
. carry out the necessary investigation to follow up on the report, including through hearings and the acquisition of documents;
. provide feedback to the reporting person within 3 months or, if there are justified and substantiated reasons, 6 months from the date of acknowledgement of receipt of the external report or, in the
absence of such acknowledgement, from the expiry of 7 days from receipt;
. inform the reporting person of the final outcome of the report.
PROTECTION MEASURES
PROTECTION OF THE CONFIDENTIALITY OF REPORTING PERSONS
. The identity of the reporting person cannot be disclosed to persons other than those competent to receive or follow up on reports
. The protection concerns not only the name of the reporting person but also all the elements of the report from which it is possible to infer, even indirectly,
the identity of the reporting person
. Confidentiality protection is extended to the identity of the persons involved and of the persons mentioned in the report until the conclusion of the proceedings initiated on the basis of
the report, with the same guarantees provided in favour of the reporting person.
PROTECTION OF PERSONAL DATA
. The processing of personal data relating to the receipt and handling of reports is carried out in compliance with European and national principles on the protection of
personal data.
. The rights referred to in Articles 15 to 22 of Regulation (EU) 2016/679 may be exercised within the limits of the provisions of Article 2-undecies of Legislative Decree 30
June 2003, no. 196.
. Internal and external reports and the related documentation are retained for as long as necessary to process the report and in any case no longer than 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.
WHAT IS MEANT BY RETALIATION
DEFINITION
Any conduct, act or omission, even if only attempted or threatened, carried out by reason of the report, the complaint to the judicial or
accounting authority, or the public disclosure, and which causes or may cause, to the reporting person or to the person who filed the complaint, directly or indirectly, an
unfair detriment, meaning unjustified detriment.
Examples of retaliatory conduct:
· dismissal, suspension or equivalent measures;
· demotion or failure to promote;
. change of duties, change of workplace, reduction in salary, change in working hours;
. suspension of training or any restriction of access to it;
· negative performance assessments or negative references;
· the adoption of disciplinary measures or other sanctions, including financial ones;
. 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 worker had a legitimate expectation of such
conversion;
. non-renewal or early termination of a fixed-term employment contract;
. harm, including to the person’s reputation, in particular on social media, or economic or financial loss, including loss of economic opportunities and loss
of income;
. inclusion on improper lists on the basis of a formal or informal sector or industry agreement, which may make it impossible for the person 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;
· the cancellation of a licence or permit;
. the request to undergo psychiatric or medical examinations.
Authority competent to ascertain retaliation
. The handling of retaliation reports in the public and private sectors is the responsibility of ANAC, which may avail itself, within their respective areas of competence, of the
cooperation of the Public Administration Inspectorate and the National Labour Inspectorate.
· The declaration of nullity of retaliatory acts is a matter for the judicial authority.
Proof of retaliation
. ANAC must ascertain that the conduct (act or omission) considered retaliatory is a consequence of the report, complaint or disclosure.
. Once the reporting person proves that they made a report in accordance with the legislation and suffered conduct considered retaliatory, it is for the employer
to prove that such conduct is in no way connected with the report.
. As this is a presumption of liability, evidence to the contrary must emerge in adversarial proceedings before ANAC. To this end it is essential that
the alleged perpetrator provides all the elements from which the absence of a retaliatory nature of the measure taken against the reporting person can be inferred.
Protection from retaliation extended to other persons
TYPES
. the facilitator (a natural person who assists the reporting person in the reporting process and who operates within the same work context);
. persons in the same work context as the reporting person, the person who filed a complaint or the person who made a public disclosure, and who
are linked to them by a stable emotional bond or kinship up to the fourth degree;
. co-workers of the reporting person or of the person who filed a complaint or made a public disclosure, who work in the same work
context and who have a habitual and current relationship with that person;
. entities owned by the reporting person or for which the same persons work, as well as entities operating in the same work context as the aforementioned
persons.
Non-punishability of reporting persons
A person who discloses or disseminates information on violations is not punishable if the information is:
· covered by an obligation of secrecy, other than legal and medical professional secrecy, or
. relating to copyright protection or
· to the protection of personal data, or
provided that, at the time of the report, complaint or disclosure, they had reasonable grounds to believe that the disclosure or dissemination of the information was necessary to
make the report and it was made in the manner required by law.
LOSS OF PROTECTION
Protections are not guaranteed when the criminal liability of the reporting person for the offences of defamation or
slander, or in any case for the same offences committed by reporting to the judicial or accounting authority, or their civil liability for the same reason, in cases of wilful misconduct
or gross negligence, is established, even by a first-instance judgment; in such cases a disciplinary sanction may be imposed on the reporting person or complainant.