Whistleblowing

The subject of the report must be unlawful conduct of which he or she has become aware by reason of his or her employment relationship.
In particular, the unlawful conduct that is the subject of whistleblowing deserving of protection covers not only the full range of crimes against public administration under Title II, Chapter I, of the Criminal Code, but also abuses of service functions that, regardless of criminal relevance, highlight a malfunction put in place for private purposes, with damage even only to the image of the administration.

It must be assumed that the category of wrongful acts includes, at least for some cases of criminal relevance, also the configuration of attempt, where its punishability is provided for.

Therefore, unlawful activities that have not yet been carried out, but which the whistleblower reasonably believes may occur in the presence of precise and concordant elements, may form the subject of a report.

The content of the reported fact must present elements from which it can be clearly inferred an injury, prejudice, hindrance, or alteration of the correct and impartial performance of an activity or a public service or for the public, including from the point of view of the credibility of the administration’s image.
Think also, merely by way of example, of cases of waste, nepotism, repeated failure to meet procedural deadlines, non-transparent hiring, accounting irregularities, false statements, violation of environmental and occupational safety regulations.

The possible existence and extent of personal interests of the reporter should be evaluated, for example, taking into account that complaints of a personal nature such as grievances, claims or requests that pertain to the discipline of the working relationship or relations with hierarchical superiors or colleagues cannot generally be considered whistleblowing reports, unless they are related or traceable to the violation of internal procedural rules of the administration that are symptomatic of its malfunctioning.

The protection of Article 54-bis Legislative Decree 165/2001 ss.mm. does not apply, on the other hand, to reports of information that is already totally in the public domain, to news without foundation, to reports based on mere suspicions or rumors or containing information that the reporter knows to be false, and to so-called “rumors.”
It is therefore advisable for reports to be as circumstantial as possible and offer as much information as possible in order to enable the RPCT to make appropriate inquiries.

The reports must be made indicating any useful element to activate the verifications to confirm the validity of the facts reported, including by way of example:

• The identity of the person making the report;
• a clear description of the facts, and if known, times and places where the facts were committed;
• The details of the individuals who committed the acts;
• If known, the details of other individuals who can report on the facts;
• Any other information or documentation useful in assessing the existence of the facts.

In the case of anonymous reports, they will be considered if sufficiently substantiated inherent in facts of particular gravity.

Their treatment takes place, however, through channels distinct and different from those prepared for Whistleblowing reports, as they do not fall, by the express will of the legislator, directly within the scope of application of Article 54 bis of Legislative Decree. 165/2001, as pointed out in point 2 of the aforementioned in the ANAC Guidelines, which reiterates that the protection provided by said article can only concern the public employee who identifies himself or herself (otherwise, the protection cannot be ensured) and, in any case, according to the literal tenor of the rule, the protection granted concerns retaliation that may take place within the employment relationship and not also those of another kind.