On 28 November 2012, following the period of vacatio legis in the Official Gazette, Law no. 190 containing provisions for the prevention and repression of corruption and illegality in the public administration.
The law also legitimized for the first time in Italy, although limited only to public entities, a system of prevention of corruption and other frauds based on the receipt, by designated bodies, of reports referring to precise contexts and verifiable facts. This tool, which draws its origins from American auditing methodologies, is known as whistleblowing.
In the light of law 190/2012, the author of the report, who identifies himself mainly as an employee of the public body or company, is encouraged to report irregularities and episodes of maladministration of which he becomes aware thanks to the protection tools provided against any retaliation against him. The complainant will be protected from fines, dismissals and other discriminatory measures of any kind. The rule establishes that during the subsequent investigations, the identity of the complainant cannot be revealed, unless the report has had the sole purpose of slandering third parties or causing damage to you.
Although the object of the complaint can be very varied, whistleblowing is particularly suitable for preventing the occurrence of episodes of corruption or extortion at company level.
In the Italian context, however, there are two serious limitations associated with whistleblowing and the consequent fight against corruption. The first is linked to the scope of application of the law: it is limited to public employees but inexplicably excludes private companies. To date, however, on the political initiative of the 5 Star Movement, a bill is under discussion that should fill the partial regulatory vacuum with respect to this criticality.
If approved, the new law should integrate and expand n.190/2012, on the one hand by providing for more precise provisions than those in force for public employees, on the other by extending the scope of application to the private sector, inserting specific obligations charged to companies for the implementation of whistleblowing.
The second limit concerns the predominant culture in the Italy-country system. As the president emeritus of the constitutional court Giovanni Maria Flick said in an interview with Repubblica-l'Espresso in 2014 - while in America the whistleblower who denounces covertly the irregularities he comes across is accredited as a person who works usefully for the community, in Italy he is almost always considered "an outcast". In fact, regardless of the context, Italian culture has always seen denouncers in a negative way. It is for this reason, concludes Flick, that – a middle ground must be found, recovering the value of shame, reputation, substantial and not just formal legality”.
Despite the silence of the law, some listed companies, relying on documents containing anti-fraud principles and procedures issued by international bodies (World Bank, PACI, UNODC), have already introduced internal guidelines, regulating the reporting management process.
In particular, large groups such as Finmeccanica, Enel and Eni have precise internal regulations regarding whistleblowing, in fact they already receive and manage numerous reports every year.
It is undeniable that making preventive anti-corruption tools operational requires the use of important company resources, but the game seems to be worth the candle: thanks to them, in particular to whistleblowing, companies can resolve any irregularities that may arise in advance and above all internally . In fact, it is well known that the intervention of the judicial authority or, in some cases, of regulation (Consob) can lead to a series of negative consequences for the company itself, both in terms of reputation and the penalties imposed against it.
