Whistleblowing

1. PREAMBLE

Legislative Decree No. 24 of 10 March 2023 (hereinafter also referred to as the "Decree") transposes and implements Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 concerning the protection of persons who report violations of EU Law, and lays down provisions regarding the protection of persons who report breaches of national regulatory provisions.
The Decree partly supplements and partly replaces the provision of Law No. 179/2017, whereby amendments had been introduced to Legislative Decree No. 231/01. The previous legislation provided ad hoc regulations on the so-called whistleblowing process, with the purpose of encouraging workers' cooperation with a view to uncovering any corrupt conduct within the Company.
In contrast, the new legislation regulates more specifically the internal and external reporting channels, their management, the role of ANAC (i.e. the Italian Anticorruption Authority) and the sanctions applicable in the event of wrongdoing.

This whistleblowing management policy (hereinafter also referred to as the "Policy"), in addition to the above-mentioned Law provisions, also takes into account the provisions of Regulation (EU) 2016/679, i.e. the so-called GDPR, as well as Confindustria's Guidelines for the Development of Organization, Management and Control Models of June 2021 by referring to ANAC's Guidelines on procedures for the submission and management of external reports.

2. PURPOSE AND GOAL

The purpose of this whistleblowing management policy is to guarantee that the identity of those who, in good faith, report the occurrence of relevant unlawful conduct, also pursuant to Legislative Decree No. 231/2001, is kept confidential by establishing clear and well identified channels of information suitable for receiving, analyzing, and processing such reports.
The aim pursued with this tool is to enable Family Cube Partners SCF Srl (hereinafter also referred to as the "Company" or shortly as "FCP") to prevent the perpetration of malpractices and offenses within the company's organization or, in any event, in regard to any relationship between any third parties and the Company itself, by promptly identifying any misconduct in order to remedy and correct it, through an active and responsible involvement of all the parties concerned.
This policy was approved by the Company's Directors - who are also in charge of updating and supplementing it.

3. DEFINITIONS

  • Reporting Person or Whistleblower means the natural person who reports or publicly discloses information about any wrongdoing that he or she has learned about in his or her work environment;
  • Retaliation means any conduct, action, or omission, even if only attempted or threatened, carried out as a result of any whistleblowing, reporting to the Judicial or Accounting Authority, or public disclosing which causes, or may cause, either directly or indirectly, any unjust harm to the Whistleblower or to the person who made the report. The following shall constitute retaliatory conduct:

dismissal, suspension, or equivalent measures;
- demotion in rank or failure to obtain a promotion;
- change of duties, change of work location, reduction of salary, change of working hours;
- suspension of training or any restriction to receiving training;
- negative performance feedback or negative references;
- adoption of disciplinary measures or other sanctions, including fines;
- coercion, intimidation, harassment, or ostracism;
- discrimination or any other unfavorable treatment;
- failure to convert a fixed-term employment contract into a permanent employment contract, where the employee concerned had a legitimate expectation to obtain such conversion;
- non-renewal or early termination of a fixed-term employment contract;
- damage, including to the individual's reputation, particularly on social media, or economic or financial harm, including loss of economic opportunities, and loss of income;
- placement on inappropriate lists on the basis of a formal or informal trade or industry agreement, which may result in the individual's inability to find employment in such trade or industry in the future;
- early termination or cancellation of a contract for the supply of goods or services;
- cancellation of a license or permit;
- a request to undergo psychiatric or medical examinations.

  • Recipient means any individual who, in any capacity, is the recipient of any whistleblowing report;
  • Feedback means the notification given to the Whistleblower of information concerning the follow-up given or intended to be given to his or her report;
  • Disclosure or to disclose means the written communication of information on any wrongdoing;
  • Report means the communication of information on any wrongdoing submitted through the internal whistleblowing channel managed electronically;
  • Wrongdoing means any conduct, act, or omission that harms the public interest or the integrity of the public administration or of a private entity, consisting in:

1) Administrative, accounting, civil, or criminal offenses that do not fall under numbers 3), 4), 5) and 6) below;
2) Unlawful conduct pursuant to Legislative Decree No. 231 of 8 June 2001, or infringements of organizational and management models, if applicable, that do not fall under numbers 3), 4), 5) and 6) below;
3) Offenses that fall within the scope of the European Union or national acts listed in the Annex to Legislative Decree No. 24/2023 or national acts that implement the acts of the European Union listed in the Annex to Directive (EU) 2019/1937, albeit not listed in the Annex to this Decree, relating to the following areas: public procurement contracts; financial services, products and markets and prevention of money laundering and financing of terrorism; product safety and compliance; transport safety; environmental protection; radiation protection and nuclear safety; food and feed safety and animal health and welfare; public health; consumer protection; privacy and personal data protection and network and information system security; 
4) Acts or omissions that harm the financial interests of the Union referred to in Article 325 of the Treaty on the Functioning of the European Union as specified in relevant secondary legislation of the European Union;
5) Acts or omissions concerning the domestic market, as referred to in Article 26(2) of the Treaty on the Functioning of the European Union, including infringements of the competition and state aid rules of the European Union, as well as violations concerning the domestic market related to acts that infringe corporate tax rules or mechanisms the purpose of which is to obtain a tax benefit that undermines the purpose or aim of the applicable corporate tax law;
6) Acts or conduct that undermine the purpose or aim of the provisions of the acts of the European Union in the areas set forth in section 3), 4) and 5) above.

4. SCOPE: INDIVIDUALS WHO ARE ENTITLED TO REPORT AND INDIVIDUALS TO WHOM THE POLICY IS ADDRESSED

This policy shall apply - in particular - to all of the Company's persons or any individual related to it, senior managers and subordinates, namely:
a) Partners/Shareholders;
b) Directors;
c) Auditors/Auditing Firm, if applicable;
d) Sole Statutory Auditor/Board of Auditors, if any;
e) Supervisory Board, where applicable;
f) Employees in the private sector;
g) Persons who, albeit not included in the category of Employees, work for the Company and/or are under the control and direction of the Company (e.g. self-employed workers, including those listed in Chapter I of Law No. 81/2017, as well as individuals who have a collaboration agreement, collaborators who provide goods or services or carry out works on behalf of third parties, volunteers and paid and unpaid interns), if applicable;
h) Individuals who, albeit external to the Company, work, directly or indirectly, for or with the Company (for example, advisors);
i) Any other person who deals with the Company for the purpose of making a disclosure;
j) Interns, contract/project workers, temporary workers, if applicable;
k) Facilitators, to be understood as individuals who assist whistleblowers in the disclosure process operating in the same work context - including those who do not work in the same office/department - and whose assistance must be kept confidential;
l) Co-workers of the Whistleblower or of the person who made a report to the Judicial Authority.
The protection granted to whistleblowers shall also apply if the report, complaint to the Judicial Authority or public disclosure of information occurs in the following cases:
- when the legal employment relationship has not yet begun, if the information on any wrongdoing was gained during the selection process or other pre-contractual phases;
- during the probationary period;
- after the termination of the employment contract if the information was acquired during the term of the employment contract.

5. SUBJECT OF THE REPORTS

The reports shall provide detailed information on:
- unlawful conduct pursuant to Legislative Decree No. 231/2001;
- breaches of the Organization and Management Model or the Code of Conduct, insofar as adopted;
- any other violation of laws, regulations, policies, rules, or corporate procedures, as described in the chapter on definitions (Chapter 3).

6. CONTENTS OF THE REPORTS

The reports must be made with a view to protecting the integrity of the Company, in good faith, and must be based on precise factual elements (not prone to different interpretations) and on consistent elements (several clues converging towards the same direction), of which the Whistleblower has become aware by virtue of the duties performed by him or her.
The Whistleblower shall provide all evidence needed to enable the competent subjects to carry out the appropriate and dutiful investigations and verifications aimed at confirming the truthfulness of the reported facts.
The reports must not be aimed at exposing situations that are solely personal in nature (disputes, claims or personal demands).

6.1 INFORMATION TO BE PROVIDED IN A REPORT

The report must include the following elements:
1. A clear and comprehensive description of the facts being reported;
2. If known, the circumstances in terms of time and place under which they were committed;
3. If known, the personal details or other elements that would allow for the identification of the person(s) who committed the reported facts;
4. An indication of any other persons who may report on the facts being disclosed;
5. The indication of any documents that may substantiate such facts;
6. Any other information that may provide useful evidence to confirm the truthfulness of the disclosure made.

7. DUTIES OF THE WHISTLEBLOWER

The Whistleblower is required to make any disclosure in good faith and in line with the stated spirit of the regulations. This policy shall be without prejudice to the criminal and disciplinary liability of the Whistleblower in the event that any report made is found to be libelous or defamatory pursuant to the Criminal Code and to Article 2043 of the Civil Code.
Any forms of abuse of the Whistleblowing policy, such as disclosures that are patently opportunistic and/or made for the sole purpose of harming the reported person or other individuals, and any other instance of misuse or intentional instrumentalization of the institution covered by this policy, shall also trigger liability, resulting in disciplinary and any otherwise applicable proceedings.

8. RECIPIENTS OF THE REPORTS

The reports can be submitted through the internal reporting channels in compliance with the conditions set forth in the provisions of Legislative Decree No. 24/2023.
The management of the reporting channel is entrusted to Conformis in Finance Srl (taxpayer’s code and VAT registration No. 07620150966), a company with registered office located in Milan, via Vincenzo Monti No. 8, (hereinafter also shortly referred to as the “Recipient”).

9. INTERNAL REPORTING

9.1 Submission of internal reports

Internal reports can be submitted in writing:

    • by sending them in a sealed envelope via registered mail with return receipt to the headquarters of FCP SCF Srl, Corso Europa 15, 20122, Milan; or
    • by uploading them onto the dedicated digital platform at https://whistleblowing.ascofind.it

Any internal report submitted to subjects other than the recipients shall be delivered, by no later than 7 days as of the date of receipt, to the competent subject and, at the same time, the Whistleblower shall be informed of such transmission. 

9.2 Management of the internal reporting channel

Any person among the individuals referred to in Chapter 4 of this Policy who has a reasonable concern that an unlawful conduct has been perpetrated or is likely to be perpetrated is required to submit a report by using the dedicated portal called "Whistleblowing Reports" accessible from the FCP website or directly at the following address: https://whistleblowing.ascofind.it (hereinafter referred to as the "Portal").
The Portal is an accessible, two-way tool that allows to make a personal encrypted communication connecting the user (hereinafter, the "Reporting Person" or "Whistleblower") with the Recipient.
Using encryption techniques ensures that the identity of the whistleblower is kept completely confidential both with respect to third parties and to the system administrators.
It is important to note that any disclosure, including those that are initially made anonymously, may be later supplemented by the Whistleblower with personal details in order to obtain protection, if necessary, as well as priority in the processing of the relevant report.

In any case, the confidentiality of the disclosure and of the communication between the Whistleblower and the Recipient shall be guaranteed at all times.

To access the Portal, no identification is required and the Whistleblower will receive, after submitting the report, a unique personal code relating to the report ("Key Code") which shall be used in order to receive updates on the report as well as to add new information. When reporting, the Whistleblower may decide whether or not to disclose his or her identity.
Should he or she decide not to reveal it, the Portal shall guarantee complete anonymity.

Upon selecting the Recipient, the Portal shall display a questionnaire to facilitate the collection of information with the option to also add any attachments to the report.

Upon receiving notice of a new report, the Recipient, by accessing the Portal, shall view the reports submitted. If the report is irrelevant, it will be disregarded and the Recipient shall inform the Whistleblower via chat that the process for further investigation into the information will not be continued.
If the report discloses an alleged wrongdoing/violation, the Recipient shall proceed with the examination of the substance thereof, as outlined below.

As part of the management of the internal reporting channel, the Recipient shall:
- issue to the Whistleblower (using the same method used to receive the report) notice of receipt of the report within 7 days as of the date of receipt of the report;
- entertain a dialogue with the Whistleblower and may request the latter to provide supplementary information, if necessary;
- diligently follow up on the reports received (specific analyses aimed at ascertaining the truthfulness of the disclosed facts or circumstances, while protecting the confidentiality of the Whistleblower's identity);
- provide feedback to the report within 3 months as of the date of the notice of receipt or as of the 7-day period after the submission of the report;
- provide clear information on the channel, the procedures, and prerequisites for making internal and external reports.
All actions aimed at verifying the genuineness of the circumstances represented in the reports shall be carried out in accordance with the principles of impartiality and confidentiality, performing any activity deemed appropriate and involving the competent corporate functions.
Upon conclusion of the preliminary investigation phase, the Recipient, subject to prior consultation with the Directors, shall take the appropriate decisions, providing the underlying reasons thereof, dismissing, where appropriate, the disclosure (if it turns out to be irrelevant, as outlined above) or requesting the designated corporate Office/Area/Function to trigger any disciplinary and sanctioning measures as a result of the findings.
Should the in-depth investigations carried out reveal any serious violations, based on a well-founded suspicion that a crime was committed, the Recipient shall promptly proceed to communicate the disclosed facts and his/her considerations to the Directors and, at the first scheduled meeting, to the other external and independent Supervisory Bodies, if any.
In the event that the disclosure is found to be truthful, the Company may take any measures deemed appropriate and actions to protect itself.

10. PROTECTION OF THE WHISTLEBLOWER

10.1. Duties of confidentiality of the Whistleblower’s identity

Except where liability for libel and slander can be found pursuant to the provisions of the Criminal Code or Article 2043 of the Civil Code and where anonymity is not enforceable by law (e.g. criminal, tax or administrative investigations, inspections by supervisory bodies), the identity of the Whistleblower shall be protected in any context following his/her disclosure.
Therefore, subject to the above exceptions, the identity of the Whistleblower cannot be disclosed without his or her explicit consent, and all those who receive or are involved in the management of the report are required to protect the confidentiality of such information.

With specific regard to the context of disciplinary proceedings, the identity of the Whistleblower may be disclosed to the disciplinary authority and to the accused person only in those cases where:

        • The Whistleblower gives his or her explicit consent;
        • The alleged disciplinary complaint is fully or partly based on the report and the disclosure of the Whistleblower's identity is absolutely vital to the defense of the accused person, provided that this fact is raised and substantiated by the latter during a hearing or through the submission of defense briefs.

In the latter case, written notice shall be given to the Whistleblower concerning the reasons for disclosing confidential data, as well as the internal reporting procedures when the disclosure of the Whistleblower's identity and of the information proves to be absolutely fundamental for the defense of the person involved.
The person involved may also be heard by means of documentary proceedings, through the acquisition of written statements and documents.
 

10.2. Personal data processing

All processing of personal data must be carried out in accordance with the GDPR provisions.
Any data that is patently not useful for the processing of a specific report must not be collected or, if accidentally collected, must be deleted immediately.
Personal data processing shall be carried out by the Data Controller, providing relevant information to the reporting and affected persons in compliance with Articles 13 and 14 of the GDPR.
Pursuant to Art. 2 undecies paragraph 1 letter f) of the Privacy Code, the rights referred to in Articles 15 to 22 of the GDPR may be limited or may not be exercised upon request to the Data Controller if their exercise may result in actual and tangible damage to the confidentiality of the identity of the Whistleblower who reports, pursuant to Law No. 179 of 30 November 2017, the wrongdoing of which he or she has become aware by virtue of his or her office.

10.3 Prohibition of discrimination against the Whistleblower

The Company will not tolerate threats or retaliation - within the broad meaning thereof as set forth in the definitions provided in Chapter 3 - of any kind against the Whistleblower or anyone who collaborated in the activities aimed at ascertaining the truthfulness of the disclosure.
It is understood that any disciplinary action taken for retaliatory purposes will be deemed to be null and void from the outset.

10.4 Protection against retaliation

Whistleblowers may notify ANAC of any retaliation they believe they have suffered. In the event of retaliation, ANAC shall inform the National Labor Inspectorate in order for the latter to take the measures falling under its authority.
In order to gather the preliminary evidence required for the investigation into the reported retaliation, ANAC may rely on the Public Service Inspectorate and on the National Labor Inspectorate.
Whistleblowers who were fired as a result of their reporting, public disclosure, or report to the judicial or accounting authorities are entitled to be reinstated in their jobs pursuant to Article 18 of Law No. 300/1970 and Article 2 of Legislative Decree No. 23/2015.

11. STORAGE OF THE DOCUMENTATION

The Recipient is required to document, by preserving and storing digital and/or paper documents, the reports received in order to ensure complete traceability of the actions taken to fulfill his/her institutional duties.

12. DISSEMINATION

This policy shall be posted on the company bulletin board, if any, or disseminated via corporate email/intranet. The addressees thereof are obliged to immediately familiarize with it.
For those subjects who do not fall into the category referred to in the previous paragraph, the whistleblowing procedure shall be posted in a dedicated area on the institutional website in the dedicated section.

13. SANCTIONS IN THE EVENT OF BREACH OF THE POLICY

In addition to the sanctions explicitly provided for under Legislative Decree No. 24/2023, any additional breach of this policy shall be prosecuted in accordance with the relevant National Collective Labor Agreement applicable to the individuals who committed such breaches.
It should be noted that, in particular, the following offenses, punishable with the measures laid down in the Corporate Disciplinary System implemented by the Company, to which reference is made herein, are deemed to be disciplinary offenses:
a) Any breach of the measures aimed at protecting the Whistleblower as well as the perpetration of any retaliatory or discriminatory act;
b) Any disclosure made with malice or gross negligence that turns out to be groundless.

In the event of breaches by the persons subject to the duty of confidentiality of the Whistleblower's identity, the Company may decide to impose sanctions, which, in progressive order of severity, may consist in a written warning, suspension of remuneration for up to 1/12 of the annual remuneration, and, for the most serious cases, termination of the office in accordance with the established procedures.

14. ANNUAL REPORT

The Recipient shall be in charge of preparing an annual report on the findings resulting from the activities carried out as a result of any reports received, in compliance with the regulations on personal data protection, which shall be submitted to the Directors; such document shall contain no reference to the whistleblowers' identities.
This report shall be approved by the Directors.