29 The Guidelines of the main trade associations, such as those of Confindustria in 2019, provide details on the contents of Models, incorporating case law principles and setting standards for their preparation. It is also advisable to adopt a Code of Ethics, which defines values, principles and rules shared by all members of the company. The Organisational Model must also provide precise indications on the composition of the Supervisory Board, the methods and criteria for its appointment, duties, powers, its functioning, etc. The Supervisory Board may be single or collective, composed of persons inside and outside the company, provided that they are independent, autonomous and qualified. In corporations, the tasks of the SB can be performed by the board of statutory auditors (Article 6(4)(a)), while in smaller companies they can also be delegated to the management body (Article 6(4)). However, case law considers the latter provision to be outdated, since the coincidence between the management body and the SB could undermine the autonomy and independence of the SB itself. The Supervisory Board plays an important role, since case law has stated that, for the purposes of exonerating the company from liability, the adoption of the Model is not sufficient, but the appointment of the Supervisory Board is also essential. With regard to Whistleblowing, the 231 Model must comply with the new legislation provided for by Legislative Decree no. 24/2023 which, in implementation of the EU Directive 2019/1937, revised the regulations on the protection of persons who report violations of Union or national law. The purpose of the legislation is to counter and prevent unlawful phenomena in the public and private sector, encouraging the emergence of unlawful conduct in the employment context. The new rules in the private sector apply to: • enterprises with at least 50 employees in the last year (with permanent or fixed-term employment contracts); • companies that, regardless of the number of employees, operate in sectors regulated by EU law (services, financial products and markets, prevention of money laundering and terrorist financing, environmental protection and transport safety); • companies that, regardless of the number of workers, have adopted an organisation and management model pursuant to Legislative Decree 231/2001. Even companies with fewer than 50 employees, if they have adopted Model 231, must comply with the new legislation. The subject of the reports may be violations of EU law and the corresponding Italian implementing provisions in specific areas (e.g. public procurement, privacy, competition, consumer protection, tax matters, environmental protection, financial services, prevention of money laundering and terrorist financing, EU financial interests) and offences that may entail the company’s liability under Legislative Decree 231/2001 as well as violations of Model 231. The reporting channels envisaged are the internal one within the company, the external one managed by ANAC and public disclosure. The reporting channel for private companies that have not reached an average of 50 workers and have adopted Model 231 is the internal one within the company. The recipients of whistleblowing within the company may be internal or external persons, provided that they are endowed with autonomy, understood as impartiality and independence, and adequate training on the subject. The legislation also imposes a series of measures to protect the whistleblower, such as the obligation to keep his/her identity confidential, the prohibition of retaliatory acts against him/her and the limitation of his/her liability for the disclosure of certain protected information, which must be set out in the 231 Model together with the procedures for managing reports, the reporting channels adopted by the company and the disciplinary system. A series of indications and operational measures are provided by the Confindustria Guidelines “New Discipline of Whistleblowing - Operational Guide for Private Entities” (Italian: “Nuova Disciplina del Whistleblowing - Guida operativa per gli enti privati”) published in October 2023. This does not mean that companies operating in the public procurement sector in particular cannot decide to adopt an anti-corruption compliance program as an integral part of the Model and contribute to mitigating the company’s liability for corruption crimes committed by its representatives. Extracts from the 231 Organizational Model, the Code of Ethics and any Anti-corruption Code of Conduct must be brought to the attention of all members of the company and customers, possibly also via the company website. * Lawyers from the Studio Legale Berliri Nucci Veroni The adoption of the Model is not compulsory, but it is also strongly recommended
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