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Impact of Law n. 179/2017 on whistleblowing in respect of: Legislative Decree 231 on administrative liability of the companies and privacy

  • Italy
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Approval of law 179/2017 on whistleblowing

The Italian Parliament and Senate approved Law n. 179/2017, a new discipline for the management of whistleblowing procedures and protection of the whistleblower. The new law, published on the Italian Official Journal and now effective, sets new and strict requirements to be complied with by:

  1. Public sector companies,
  2. Companies working with, or providing goods and/or services to public sector companies ; and
  3. Private sector companies.

Public sector and companies working with public sector

According to the law 179, any company of the public sector, and/or working with or providing services to any of such public company shall have to comply with whistleblowing procedures and rules. Any employee and collaborator of the company shall benefit of the protection guaranteed by the law. The whistleblower, therefore, shall have to be protected from any retaliation or damage (s)he may suffer as a consequence of his/her communication.

In this respect, it is worth mentioning that any of such company shall have to adopt, or amend as required, a whistleblowing policy.

Any company working with, or providing goods and/or services to public sector companies id also required to implement the requirements set by Law 179.

Private sector - Legislative Decree 231 on administrative liability of the companies

Regarding the private sector, the law sets out the obligation to insert in any organizational model pursuant to Legislative Decree 231/2001 a whistleblowing procedure. Therefore, the companies which adopted such organizational model shall have to assess if the current procedure is adequate or amend it according to the new law.

Due to the wide range of areas of law involved, it is worth summarising below the main principle of Legislative Decree 231/2001 (hereinafter the “Decree”), which sets out the “Regulation for the administrative responsibility of legal entities, companies and associations even without juridical status”.

This Decree introduced for the first time in the Italian legal system the criminal liability of companies, which is thus added to the criminal liability of the individual who materially commits the offence.

This responsibility aims at extending the penalties applicable to some criminal offences, to the assets and economic interests of organisations who benefit from criminal offences committed in the interests of the organization itself by its directors and/or employees.

More specifically, the Decree states that the organization can be held liable in all those cases where a specific criminal offence is committed in its interests or for its benefit:

  1. by persons covering roles of representation, administration or management of the Company or by any of its business units having financial and operative autonomy, or by persons who, in fact, manage and control the same (for example, directors, general managers);
  2. by persons under the management or supervision of one of the persons indicated by point a) (for example employees).

As far as the type of crimes covered by the Decree are concerned, the legislator delimited these to the cases listed and described by the law.

It is necessary to clarify that the areas covered by the Decree are not only the classic bribery or corruptions crimes, or those covered by the US Sarbanes-Oxley Act or UK Bribery Act, but as a matter of fact Italian legislation includes many other areas.

Herebelow there is a list of areas of law where the Decree sets out the liability of the companies (please note that it is for reference purposes and not exhaustive and could be further extended to other areas of law).

  • Offences against the Public Administration, such as corruption, bribery, fraud and computer fraud against the State, embezzlement (art. 24 and 25 of the Decree);
  • Computer crimes  (art. 24 bis);
  • Organized crimes, such as mafia association (art. 24 ter);
  • Crimes against the public trust, such as money counterfeiting (art. 25 bis);
  • Crimes against business and trade, such as illegal competition (art. 25 bis.1);
  • Corporate offences, such as false corporate communications and false financial statements (art. 25 ter);
  • Acts of terrorism and democracy subversion (art. 25 quater);
  • Crimes related to female genital mutilation (art. 25 quater.1);
  • Crimes against the person, such as child prostitution and pornography, traffic of humans, slavery (art. 25 quinquies);
  • Market abuses (art. 25 sexies);
  • Negligent homicide and negligent serious injury in violation of workplace health and safety regulations (art. 25 septies);
  • Money laundering, receipt of stolen goods, use of goods of illicit provenance (art. 25 octies);
  • Violations of the copyright (art. 25 novies);
  • Crimes against the justice administration, such as perjury and induction to perjury (art. 25 decies).

To read the full article please find the pdf attached