1. the Italian legislation on whistleblowing and the EU Directive April 16, 2019 a comparison
laura valli
ANAC

2. Whistleblowing: Two perspectives
the «Government» perspective: whistleblowing as aN anticorruption tool
the «Human rights» perspective: whistleblowing as expression of the right to freedom of speech
Council of Europe
European Court of Human Rights
European Parliament
U.N Convention on the fight against corruption
Council of Europe civil law convention on corruption
OECD anti bribery convention

3. Italian law and EU Directive: Two perspectives
Italian legislation
UE Directive
Persons who report information about threats or harm to the public interest obtained in the context of their work-related activities make use of their right to freedom of expression.
The Anti-corruption Law No 190/2012 includes provisions on whistleblowing protection within the anticorruption two- tier strategy for the public sector
The new Law No 179/2017 strengthens pre-existing whistleblower protections for public-sector employees, and extends those same protections to the private sector

4. The public interest
Italian legislation
UE directive
A public employee who reports illegal or unethical conduct in the public interest shall not be retaliated against………
A broad notion of “public interest” including, as a minimal standard, violations of law and human rights, as well as risks to public health and safety and to the environment

5. the whistleblower Eu directive Italian legislation
EU citizens or third-country nationals
Part-time and fixed-term contract workers
Persons with a contract of employment or employment relationship with a temporary agency
Self-employed persons providing services, freelance, contractors, subcontractors and suppliers
Persons whose work-based relationship ended
Candidates for employment or for providing services to an organization
Volunteers and paid or unpaid trainees
Employees of public administrations (Ministries, Regions, Municipalities, judges, military personnel, state police forces, diplomatic staff, etc.)
Employees of public-economic entities
Employees of private-law entities subject to public control
Employees and contractors of companies supplying goods, works or services to the public administration

6. Protected disclosures
Italian LAW
EU directive
breaches which have already taken place, breaches which have not yet materialized, but are very likely to be committed, acts or omissions which the reporting person has reasonable grounds to consider as breaches of Union law as well as attempts to conceal breaches
protection is warranted also for persons who do not provide positive evidence but raise reasonable concerns or suspicions
protection should not apply to the reporting of information which is already fully available in the public domain or of unsubstantiated rumors and hearsay
the notion of breach also includes abusive practices, as determined by the case law of the European Court of Justice, namely acts or omissions which do not appear to be unlawful in formal terms but defeat the object or the purpose of the law
work-related unlawful behaviors and ethical misconduct, including (but not limited to):
criminal conducts
violations of codes of conduct
mismanagement of public resources
nepotism
accounting irregularities
violation of environmental and occupational safety regulations

7. Reporting channels Eu directive Italian law
Internal reporting is the first point of call for whistleblowers; that can be omitted if the whistleblower has grounds to believe that an internal report could jeopardize subsequent investigations into the company’s alleged wrongdoing
External reporting to the competent national authorities if the company does not respond to the report within three months or if the internal route has been otherwise exhausted
Media reporting if the whistleblower first reported internally and externally or directly externally, but no timely action has been taken by either the company or the public authorities, or if the breach must be disclosed immediately as there is an imminent danger to the public interest
Employees may report a violation either to:
The officer charged with corruption prevention and transparency in each public administration
The National Anticorruption Authority (ANAC), and
The judicial or accounting authority

8. Protection of confidentiality
Italian law
EU directive
The identity of every reporting person, concerned person, and third persons referred to in the report (e.g. witnesses or colleagues) is protected at all stages of the procedure
The duty of professional secrecy and confidentiality when transmitting the data both inside and outside of the competent authority is complied with
The identity of the reporting person may be disclosed only where this is a necessary and proportionate obligation required by Union or national law in the context of investigations by authorities or judicial proceedings, in particular to safeguard the rights of defense of the concerned persons
Protection should not apply to the reporting of information which is already fully available in the public domain or of unsubstantiated rumors and hearsay
In the disciplinary proceedings: the identity of the whistleblower can not be disclosed without his/her consent
In the criminal proceedings: the identity of the whistleblower is covered by secrecy throughout the closure of the preliminary investigations (Article 329 cpp.)
In the proceeding before the Court of Audit: the identity of the whistleblower can not be disclosed until the end of the preliminary phase
Confidentiality is not protected if the whistleblower is found guilty of slander, defamation or other crimes committed in relation to the complaint, or when her/his civil liability is established for malice or gross negligence

9. Protection from retaliation
Italian law
EU directive
Broad definition: any act or omission occurring in the work- related context which causes detriment to the wb
Reporting persons should be protected against any form of retaliation
direct or indirect
taken, recommended or tolerated by their employer or customer/recipient of services and by persons working for or acting on behalf of the latter, including co-workers and managers in the same organization or in other organization with which the reporting person is in contact in the context of the work-related activities
taken against the reporting person or
the legal entity that the reporting person owns, works for or is otherwise connected with in a work-related context
facilitators or co-workers or relatives of the reporting person who are also in a work-related connection with the latter’s employer or customer/recipient of service
A public employee who reports illegal or unethical conduct in the public interest shall not be retaliated against through any sanctions, dismissal, demotion, transfers to other offices, or other organizational measures having a negative effect on his/her working conditions

10. BURDEN of proof
Italian law
Eu directive
The burden of proof is on the employer to prove that the (alleged) retaliatory measure was not connected to the wb complaint The whistleblower who has been dismissed because of his or her report is entitled to reinstatement
Once the reporting person demonstrates that he or she made a report or public disclosure in line with the Directive and suffered a detriment, the burden of proof should shift to the person who took the detrimental action, who should then demonstrate that the action taken was not linked in any way to the reporting or the public disclosure

11. Private sector Italian law Eu directive
Only private entities which have already introduced compliance programs (which can exclude corporate liability) shall set up a reporting system for whistleblowers, including:
one or more channels allowing employees to internally report illegal conduct or violations, in the interest of the protection of the entity's integrity
at least one alternative reporting channel which would guarantee the confidentiality of the whistleblower’s identity, and
appropriate measures to protect the whistleblower’s identity and to maintain the confidentiality of information in any context subsequent to reporting, to the extent that anonymity and confidentiality are legally enforceable.
Private legal entities with at least 50 employees or with an annual turnover or total assets of more than €10 million must adopt internal reporting channel

12. The role of anac
Regulatory powers: ANAC shall issue guidelines on the procedures for submitting and managing whistleblowers’ claims
Investigative powers: ANAC may conduct fact-finding investigation on the claim brought by the whistleblower as well as on the discriminatory measures
Sanctioning powers:
In the event of detrimental treatment against the whistleblower adopted by the public administration, there may be pecuniary administrative sanctions ranging from €5,000 to €30,000
In the event of inappropriate reporting procedures and systems for managing reports, there may be pecuniary administrative sanctions ranging from €10,000 to €50.000
In the event of failure to properly examine and process received reports, there may be a pecuniary administrative sanction ranging from €10,000 to €50.000

13. ANAC’s IT system for intake and management of complaints
Allows public employees to report any misconduct with an user-friendly tool;
Provides complainants with the possibility to communicate with ANAC throughout the process;
Protects the identity of the complainant;
Ensures the confidentiality of the information provided by the complainant;
Allows the ANAC team (receiving structure) to receive the complaint, communicate with the complainant and collect data.
The new IT platform is fully operational from February 2018 and has led to a noticeable increase in reports with respect to the year In the first eight months and a half of 2018 the complaints doubled those of the whole 2017 (610 complaints compared to 364).

14. Types of complaints (Jan-sept 2018)
Corruption, abuse of power %
Procurement irregularities %
Retaliatory measures %
Irregularities in appointments to public offices %
Irregularities in selections for public offices %
Failure in implementing the PNA %
Mismanagement of public resources %
Conflict of interest %