Whistleblowing: the Italian Official Gazette publishes the rules for imposing penalties (Il Quotidiano del Lavoro de Il Sole 24 Ore, 21 November 2018 – Elena Cannone, Antonella Iacobellis)
Almost a year on from the entry into force of Law 179/2017 on whistleblowing, the aim of which is to protect employees reporting offences or irregularities of which they became aware in connection with their work, the resolution of the National Anti-Corruption Authority (“ANAC”) no. 1033 of 30 October 2018 was published in the Official Gazette no. 269 dated 19 November 2018. Also issued at the same time was the “Regulation on exercising the power to impose penalties with regard to protecting those reporting offences or irregularities of which they became aware within the context of their employment relationship pursuant to Article 54-bis of Legislative Decree no. 165/2001” (hereinafter, the “Regulation”).
The Regulation becomes effective on the fifteenth day following its publication in the Official Gazette, and applies to penalty proceedings initiated after its entry into force.
Essentially, the Regulation sets forth that ANAC can exercise the power to impose penalties:
– ex officio, if it detects one or more of the breaches set forth in Art. 54-bis, paragraph 6, of Legislative Decree no. 165/2001, as part of the activities carried out in accordance with ANAC’s annual directive on the performance of supervisory functions, or:
– upon receiving a communication from the party concerned or the trade unions most represented within the organisation where such breaches are supposed to have been committed. The communication must be submitted via a specific form available on the relevant IT platform, accessible from the ANAC website, which uses cryptographic systems to guarantee the confidentiality of (i) the submitting party’s identity; (ii) the contents of the report, and (iii) the related documentation.
After receiving the reports, the person in charge of the proceedings (the “Office Manager”) is required to:
– examine them,
– prioritise them pursuant to Art. 5 of the Regulation,
– identify one or more officers to whom to entrust the investigation (pursuant to Art. 8 of the Regulation), who will be responsible for submitting written evidence and statements of defence and for requesting that any witnesses be heard.
Within 90 days of receiving a report, and unless otherwise required by the proceedings, the person in charge shall send the parties concerned a letter informing them of the complaint filed against them and providing them with specific information regarding the charges. Within 30 days of receiving said letter (which term may be extended by a further 30 days for justified reasons), the parties concerned may submit written statements, briefs or documents, as well as gain access to the case documents or request to be heard.
At the end of the investigation, if the conditions for dismissing the case are not met, the “Department in charge of monitoring the reports received by ANAC” shall inform the party concerned that it intends to recommend the application of a fine by the “ANAC Council”. Within 10 days of receiving this communication, the party concerned may submit further statements of defence or request that a hearing be granted in the event of new facts arising in addition to those that emerged during the investigation. The ANAC Council is required to examine the content of the new statements of defence and to assess the findings of any investigation conducted, before confirming or amending the penalties imposed and issuing the final order to be notified to the person responsible for the breach.