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Italy (finally) protects a whistleblower, issues first penalty for retaliation

The Italian National Anti-Corruption Authority (ANAC) has imposed a penalty for retaliatory measures against a whistleblower for the first time since the adoption of the whistleblower protection legislation.

Entered into force on December 29, 2017, law No 179/2017 (the Law) aimed to strengthen the existing protection in the public sector and introduce the yet missing protection in the private sector.

Among other provisions (see full review in my previous post), the Law envisages that a public employee, reporting illegal conduct in the interest of public administration’s integrity shall not be retaliated due to the report, including sanctions, dismissal, demotion, transfers to other offices, or be subject to any other measures having a negative effect on the working conditions.

When faced with a whistleblower’s claim for retaliation, it is the company’s burden to prove that the actions taken against the whistleblower were not connected with the act of whistleblowing. In case it is confirmed that the employee was dismissed for reasons related to the report, he or she is entitled to the reinstatement in the workplace, the compensation for damage caused and payment of social security contributions due for the period between the dismissal and reinstatement.

In terms of sanctions, the Law provides that ANAC can apply a penalty ranging between €5,000 ($6,200) and €30,000 ($37,000) charged to those responsible for retaliatory measures against the whistleblower.

The whistleblower, a manager and a member of the Disciplinary Committee in a municipality based in the region of Campania, has reported the members of the committee for negligence of a public official (art. 328 of the Criminal Code) and abuse of public office (art. 323 of the Criminal Code). Following the filing of the report with the judicial authority, the manager was suspended from work without pay for ten days and then for another twelve days.

After a careful examination of the matter and a hearing of two members of the disciplinary committee, the ANAC considered the underlying reasons for the measures against the whistleblower as retaliatory inflicting a penalty of €5,000 ($6,200) on the responsible for the suspension.

There has been “conflict of interest situation created between the informant and the members of the committee, who, although they were aware of having been reported by the whistleblower before the start of the disciplinary disputes, did not abstain,” the ANAC noted in its resolution.

From the beginning of 2019 until today, the ANAC has received 706 whistleblower reports. After an examination, 41 cases were transmitted to the Public Prosecutor’s Office and 35 to the Court of Auditors. To date, the ANAC has launched 17 penalty proceedings, 10 of them are currently in progress.

The case seems to go in line with the current focus on whistleblower protection in Europe. On October 7, 2019, the EU Council formally adopted the EU-wide Whistleblower Protection Directive. The new regulation aims to guarantee a Europe-wide standard for the protection of whistleblowers.

The directive provides that whistleblowers (and their supporters, such as colleagues or family members) will benefit from special legal protection against all forms of retaliation (such as dismissal, degradation or intimidation).

Additionally, they will be given access to legal, financial, and psychological support. EU Member states now have two years to transpose the Directive to national legislation with a due date of May 15, 2021.

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