Whistleblowing

Whistleblowing

Scope of Application

The scope of the regulation under consideration includes criminal, civil, administrative, or accounting offenses different from those specifically identified as violations of EU law that harm the integrity of the private entity. Also included are violations of national regulations:

  • Offenses prerequisite for the application of Legislative Decree 231/01 and violations of the organizational and management models provided for in Legislative Decree 231/01.

Violations of European regulatory provisions:

  • Offenses committed in violation of the EU regulations indicated in Annex 1 to Legislative Decree 24/23 and of all national provisions implementing them.


Exclusions from the scope of Legislative Decree 24/23:

Excluded from the scope of the new discipline are reports linked to a personal interest of the whistleblower, pertaining to their individual employment relationships, or related to relationships with hierarchically superior figures.

Content of the report:

Reports are information, even for reasonable suspicions, concerning violations already committed or not yet committed, as well as conduct aimed at concealing them.

Reports must relate to behaviors, including omissions, of which the whistleblower has become aware in the work context.

It is necessary that the following elements be clear in the reports:

  • Identifying information of the reporting person (name, surname, place, and date of birth), as well as a contact address for subsequent updates;
  • The circumstances of time and place in which the reported fact occurred and, therefore, a description of the facts of the report, specifying the details related to circumstantial news and, if present, also the methods by which the whistleblower became aware of the facts of the report;
  • The personal details or other elements allowing the identification of the subject to whom the reported facts are attributed and in case of using the analog channel (e.g., registered mail), an indication that the whistleblower is submitting the report concerning whistleblowing matters. It is also useful for documents that could provide grounds for the reported facts to be attached to the report, as well as the indication of other potentially aware parties.

Reporting Methods, Internal Reporting, and Further Stages:

Reports can be made alternatively in the following ways:

INTERNAL WRITTEN CHANNEL: ordinary mail (Registered Mail) addressed to “attorney Luciana Sgaravatto, as the manager of A.F. Logistics S.p.A.’s reports” in 26815 – Massalengo (LO), S.P. 23 snc, Cascina Postino Location

It is suggested that the report be placed in two closed envelopes, including, in the first, the identifying data of the whistleblower, along with an identity document, while in the second, the subject of the report, being careful to place both envelopes in a third envelope bearing the wording “reserved for the report manager” and related contact details.

INTERNAL ORAL CHANNEL via phone call to the number 0371/7806230 used by the Reporting Manager Attorney Luciana Sgaravatto as well as direct meeting, to be scheduled in agreement with the reporting manager, at Her studio in 26815 – Massalengo (LO), S.P. 23 snc, Cascina Postino Location.

Reception of the report:

The report manager must provide the whistleblower with a receipt within seven days of the presentation of the report, to be sent to the address indicated by the whistleblower in the report. In the absence of such indication and therefore the impossibility of interacting with the whistleblower for follow-ups, the report will be considered unmanageable under the whistleblowing discipline, and proof of this will be provided, kept at the Manager’s premises together with the report.

Admissibility of the report:

For admissibility purposes, it is necessary for the report to clearly indicate:

  • The circumstances of time and place in which the reported fact occurred and, therefore, a description of the facts of the report, containing details related to circumstantial news and, if present, also the methods by which the whistleblower became aware of the reported facts;
  • Personal details or other elements allowing the identification of the subject to whom the reported facts are attributed.

Based on these indications, the report may be deemed inadmissible due to:

  • Lack of data that constitute the essential elements of the report;
  • Manifest unfoundedness of the factual elements attributable to violations typified by the legislator;
  • Exposure of facts of a generic content that do not allow understanding by the offices or the proposed person;
  • Production of only documentation without the actual reporting of violations.

If the report is found to be unprocedural or inadmissible, the report manager will proceed with archiving, communicating the reason to the whistleblower.

Outcome of the investigation:

Once the verification activity is complete, the report manager may:

  • Archive the report because it is unfounded, motivating the reasons;
  • Declare the report justified and refer to the competent internal organs/functions for the related follow-ups and consequent measures.


Feedback to the whistleblower:

The report manager must provide feedback to the whistleblower within three months from the date of receipt acknowledgment.

If the situation requires, for verification purposes, more time, at the expiration of the indicated deadline, the Reporting Manager must send an interim communication to the whistleblower about the progress of the investigation, which is not yet completed.

External Reporting and Public Disclosure Channel:

To use the reporting channel established by the ANAC, at least one of the following conditions must exist:

  • Internal channel activation is not provided for in their work context, or if provided, it has not been activated;
  • The report has not been followed up;
  • There are reasonable grounds to believe that if the internal report were made, it would not be followed up or that it would be subject to retaliation;
  • There are reasonable grounds to believe that the violation may constitute an imminent or blatant danger to the public interest.

External reporting is also permitted when there are reasonable grounds to believe that the report could result in the risk of retaliation, for example, when similar situations and events have already occurred in the entity.

In any case, the reasonable grounds legitimizing the use of external reporting due to fear of retaliation or inadequate handling of the report must be based on concrete circumstances that must be attached to the report and on information actually obtainable.

For admissibility purposes, the report must indicate:

  • The name and contact details of the whistleblower;
  • The facts reported and the Administration or Entity in which they occurred;
  • The Administration in whose work context the whistleblower operates and the professional profile held by the whistleblower;
  • A brief description of the methods by which the whistleblower became aware of the reported facts.


Public Disclosure:

Public disclosure, to be used as a last resort, can only occur if at least one of the following conditions is met:

  • The internal and/or external channel has previously been used, but there has been no response or follow-up within the deadlines provided by the decree;
  • The whistleblower believes there are reasonable grounds for an “imminent and blatant danger to the public interest,” considered as a situation of emergency or risk of irreversible harm, even to the physical integrity of one or more people, which requires the violation to be promptly disclosed with widespread resonance to prevent its effects.
  • The whistleblower believes there are reasonable grounds to believe that external reporting may pose a risk of retaliation or may not be effective because, for example, there could be a genuine risk of destruction of evidence or collusion between the authority receiving the report and the perpetrator of the violation.

These are extremely rare, particularly serious situations of negligence or malicious behavior within the entity, which therefore legitimize, only in the presence of actual circumstances, the public disclosure of facts or events that otherwise should be treated with strict confidentiality.

Prohibition and Protection against Retaliation

Any form of retaliation against the whistleblower that occurs in the work context and results in unjust harm to protected individuals is prohibited. Retaliatory acts adopted in violation of this prohibition are null and void.

The ANAC is the authority designated to receive from the whistleblower and manage communications regarding alleged retaliations suffered by them.

For this form of protection to be recognized, the following conditions must exist:

  • The whistleblower, at the time of reporting to the judicial or accounting authority or public disclosure, had “reasonable grounds” to believe the information to be true and within the scope of application of the discipline;
  • The report, complaint, or disclosure was made in accordance with the discipline provided for by Legislative Decree 24/23.


Internal Sanctioning System: Disciplinary Code

The company has a disciplinary code, which together with others, constitutes the Organizational Management and Control Model referred to in Legislative Decree 231/01.

The Disciplinary Code contains all the relevant provisions, also concerning behaviors related to non-compliance with the rules and precepts of Legislative Decree 24/23 and the present act establishing the reporting system and its management. Therefore, with regard to internal disciplinary sanctions, reference is made in full to the Disciplinary Code referred to in the MOGC pursuant to Legislative Decree 231/01.

External Sanctioning System

From an external perspective, the sanctioning regime distinguishes, for various cases, between individual and legal entities deemed responsible.

With reference, however, to the hypothesis of sanctioning those who have adopted retaliatory actions, it has been specified that the individual identified as responsible for the retaliations is sanctioned.

Specifically, the pecuniary administrative sanctions are as follows:

a) From €10,000 to €50,000 when it is ascertained that the individual identified as responsible has committed retaliations;

b) From €10,000 to €50,000 when it is ascertained that the individual identified as responsible has obstructed the report or attempted to obstruct it;

c) From €10,000 to €50,000 when it is ascertained that the individual identified as responsible has violated the obligation of confidentiality pursuant to Article 12 of Legislative Decree No. 24/2023. Without prejudice to the sanctions applicable by the Guarantor for the protection of personal data for the profiles of competence based on the discipline concerning personal data;

d) From €10,000 to €50,000 when it is ascertained that reporting channels have not been established; in this case, the responsible party is considered to be the governing body;

e) From €10,000 to €50,000 when it is ascertained that procedures for the execution and management of reports have not been adopted or that the adoption of such procedures is not in compliance with what is provided for by the decree; in this case, the responsible party is the governing body;

f) From €10,000 to €50,000 when it is ascertained that the activity of verification and analysis of received reports has not been carried out; in this case, the responsible party is considered to be the report manager;

g) From €500 to €2,500, when the civil liability of the reporting person for defamation or slander is established, even with a first-instance judgment, in cases of malice or gross negligence, unless the same has already been convicted, even at first instance, for the crimes of defamation or slander or for the same crimes committed with the report to the judicial authority.