Companies must review organizational models (Leg. Decree 231/01)



Publication: Italia Oggi

What is the relationship between recent legislation and the “231” organizational model? “In light of new regulations, the “231” organizational model provides a way of introducing the concept of whistleblower into the private sector, as well as a “response” to the ambitious project of spreading an anti-corruption culture in companies that, by implementing an effective system of guarantees for whistleblowers, can be translated into concrete action and thus become tangible,” stressed Tiziana Manenti, partner of Watson Farley & Williams. “It is true that the existing regulatory gap has actually accentuated the similarities between the “231” organizational model and whistleblowing (referring, in particular, to the obligation within the framework of the “231” organizational model, to inform the body in charge of overseeing operation and observance of the model), which have ended up making the former the natural means of implementing the reform in question.”

And Roberta Battistin, tax counsel at Delfino e Associati Willkie Farr & Gallagher LLP, added that “the inclusion of whistleblowing in “231” organizational models means that only illegal conduct committed in the interest of or to the benefit of the company appears to be subject to reporting. Consequently, where a crime is committed in a company that does not have an 231 organizational model, a whistleblower that decides to make a report through another channel – for example to the judicial authorities – could not rely on the protection envisaged under the provisions in question. These limitations are difficult to reconcile with the inspiring objective of the instrument, namely to combat the commission of offences and safegaurd corporate integrity.”

“The effectiveness of the legislation will very much depend, in practice, on the extent and type of sanctions that bodies provide in their disciplinary system,” according to Andrea Scarpellini of Villa & Villa e Associati. “Under the new Art. 2-bis of Decree 231, these sanctions are limited to cases of violation of the measures to protect whistleblowers and to unfounded reports resulting from malice or gross negligence, while no penalties are envisaged for inaction on the part of the person responsible for managing the report. In the corresponding provisions for the public sector, on the other hand, failure to check and analyse reports received carries an administrative penalty of €10,000 to €50,000 for the manager.”

For Alessandro De Nicola, Orrick’s senior partner, “there is no doubt that the attribution of legislative force to an obligation to protect whistleblowers increases employee protection, but since the adoption of the “231” organizational model is not mandatory, the original objective of encouraging ‘honest citizens’ – this is the term used by the proposers of the bill in October 2015 – by spreading of a culture of ethics and transparency also in the private sector cannot be considered fully achieved. Indeed, absurdly, we cannot rule out the problem of unequal treatment between employees of private bodies who have adopted a “231” organizational model, and are therefore protected by the anti-retaliation measures of the bill, and those whose organisations do not have a “231” organizational model and are, therefore, apparently not protected by any prohibition of retaliation or discrimination.”

“The measure will certainly require an applicative effort by private enterprises in terms of modifying their 231 organizational model and code of ethics as well as approving forms of internal regulation relating to the management of human resources and reporting channels,” said Raffaele Caldarone, partner of Nctm. “It will be necessary to ensure, through the adoption of IT measures,” continued the lawyer, “the confidentiality of the informant, and to protect them from retaliation, provided that the whistleblower is in good faith and pursues the purpose of protecting the organisation’s integrity.”

“At first glance, the fact that the legislation refers only to models aimed at preventing crimes committed by senior management and not, instead, also to the organization, management and control models referred to in Article 7 of Legislative Decree 231/2001 aimed at preventing the perpetration of crimes by persons subject to the management or supervision of a senior manager,” added Maurizio Ragno, counsel of Bird & Bird, “should not, it seems, be over-emphasized, also in consideration of the consolidated practice of adopting a single organizational model. It should moreover be noted that the legislation does not specify, among other things, who reports of irregularity should be addressed to within a company or organization. In this regard, however, it would seem we may conclude that such reports should be submitted to the body of the organization with autonomous powers of initiative and control in charge of supervising the functioning and observance of the models and, therefore, the so-called ‘231 supervisory bodies’.”

Guido Callegri, partner at De Berti Jacchia Franchini Forlani, appreciates the fact that legislators “have striven to require and define the good faith of the person making the report: whistleblowing, in fact, can be a deadly weapon, seriously affecting the career (and not only) of a public or private employee. I have also noted the changes to Law 231 which require companies to adapt the organizational model to the dictates of the new law. In this new technical-legal mechanism,” the lawyer continued, “legislators presumed that any measures and provisions adopted against the informant after making a report were retaliatory in nature. The rule would seem to be based on the obvious. I would be worried, however, if the person making the report was totally relieved of any responsibility for his actions.”

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