Whistleblowing in Italy: new guidelines from ANAC

Introduction

Further to the adoption of Legislative Decree no. 24/2023 (the Italian WB Decree), which transposed in Italy the EU Directive 2019/1937 (the EU Whistleblowing Directive), many companies have struggled to understand how to properly implement – or update – their whistleblowing systems in line with the new requirements.

In order to try and bring some clarity, various Italian authorities/bodies – most notably ANAC (i.e. the Italian Anti-Corruption Authority, which has been entrusted with the duty to monitor compliance with the new whistleblowing legislation) and Confindustria (the main employers’ association for the industrial sector) – have issued interpretative guidelines. 

Against this background, ANAC has recently issued a new set of guidelines aimed at further clarifying how internal reporting channels should be implemented and managed (the New ANAC Guidelines). 

Key highlights of the New ANAC Guidelines

1. The role of employee representatives: the Italian WB Decree requires companies to activate whistleblowing channels “having heard” the relevant employee representatives. This wording raised some discussions on whether a formal consent from employee representatives would be required. ANAC has clarified that it is sufficient that the companies consult with the employee representatives about the main features of the new whistleblowing channels so to allow them to offer comments/observations (i.e. no consent is required).

    

2. Submission of a whistleblowing report: the New ANAC Guidelines confirm that companies shall grant whistleblowers the possibility to choose whether submitting their report in writing or orally. As to the written reports, ANAC recommend that companies rely on ad hoc online platforms, as these tools are deemed to better ensure confidentiality and proper protection of personal data.

    

3. Sharing whistleblowing channels: under the Italian WB Decree companies with up to 249 employees (average in the last year) may share whistleblowing channels. In this respect, ANAC clarified that: (i) this apply also to companies within the same group; (ii) the companies involved must enter into an agreement regulating the respective roles/responsibilities; and (iii) while costs and technical infrastructure may be shared, each company must still have its own dedicated whistleblowing channel within the platform and its own person/body responsible for handling whistleblowing reports. 

    

4. Interplay with Organizational Models pursuant to Legislative Decree no. 231/2001: The New ANAC Guidelines also address the relationship between the Italian WB Decree and the whistleblowing mechanisms already provided within compliance programs adopted under Legislative Decree no. 231/2001 (231 Models).  In a nutshell, ANAC confirms that whistleblowing channels implemented in the context of 231 Models shall be aligned with the new legislation, which means: (i) updating the 231 Model whistleblowing channels to comply with the new requirements; (ii) including an explicit prohibition of retaliation; and (iii) updating the disciplinary systems of the 231 Model to include sanctions related to violations of whistleblowing rules. 

    

Conclusion

While the Italian Whistleblowing Decree posed a number of interpretative questions, the guidelines issued by ANAC and other bodies can help companies navigating the operational and compliance challenges associated with building effective and legally compliant whistleblowing systems.