Anac modifies the Whistleblowing Regulation
Recently, due to some legal amendments, we are back to talking about Whistleblowing.
As it is known, Whistleblowing has been regulated in Italy by Law, November 30, 2017, no. 179 (effective from December, 29, 2017). With such law two different legal disciplines have been introduced: one discipline for private companies and one discipline applicable to public employment, with the amendment to the Legislative Decree no. 165/2001.
In particular, Law no. 179/2017 provides for the establishment, in every public administration, of a certified system to the forwarding by the employees of offenses and/or unlawful conducts of which the employee has become aware in connection with the employment relationship.
The matter has been regulated furthermore by a specific discipline approved by Anac - National anti-corruption authority, on October, 30, 2018: the Regulation regarding the excercise of the sanctioning power in case of whistleblowing (the "Whistleblowing Regulation"), implementing the provisions of law.
ANAC has recently approved the Resolution no. 312/2019 that provides the amendment of Article 13 of Whistleblowing Regulation, with reference to the excercise of the sanctioning power in case of whistleblowing. The Resolution has been published in the Official Journal (so called "Gazzetta Ufficiale") n. 97 of 04-04-2019.
The resolution modifies totally the Article 13 of the Regulation that is now titled "Direct archiving of reports / communications and provisions relating to supervisory procedures activated on the basis of a report of crimes or irregularities pursuant to art. 54-bis of Legislative Decree No. 165/2001".
On the basis of the amendments introduced by the Resolution, the current text of Article 13 states that the competent Office must file reports / communications in the following specific cases:
a) manifest lack of interest in the integrity of the public administration;
b) manifest incompetence of the Authority on the issues reported;
c) manifest groundlessness due to the absence of elements of fact suitable to justify assessments;
d) manifest lack of legal requirements for the application of the sanction;
e) intervention of the Authority no longer actual;
f) clearly emulative purpose;
g) ascertained generic content of the report / communication or such as not to allow the understanding of the facts, or reporting / communication accompanied by inappropriate or irrelevant documentation;
h) production of only documentation in the absence of reporting illegal conduct or irregularities;
i) lack of data that are essential elements of the report / communication.
The second paragraph of Article 13 specifies that, outside the aforementioned mandatory cases, the competent Office must transmit the report of unlawful conduct / offenses to the competent supervisory offices.
It will then be the duty of these offices to carry out the preliminary investigation in compliance with the protection of the confidentiality of the identity of the reporting person.