Two bills to transpose the Whistleblower Directive ((EU) No. 2019/1937 of 23 October 2019) were definitively adopted by the French Parliament on 16 February 2022 and will enter into force in the coming weeks.
French law on the topic of whistleblowing was rationalised with the introduction of Law 2016-1691 of 9 December 2016 on ‘transparency, the fight against corruption and the modernisation of economic life’ (known as the ‘Sapin II’ law, from the name of the French Minister of the Economy at that time) and its Application Decree 2017-564 of 19 April 2017 on the procedures for collecting alerts filed by whistleblowers. This established a legal status for whistleblowers, in lieu of the scattered provisions that previously existed.
These regulations essentially established the following:
According to a report published by the French Parliament on 7 July 2021, little use has been made of this legal scheme since its entry into force, probably due to the multiple cumulative conditions to be met in order to benefit from the protection of whistleblowers. These have been considered too uncertain (in particular, the whistleblower has to act ‘in a disinterested manner’ and respect a strict reporting procedure, otherwise s/he will be denied legal protection).
In parallel, the Whistleblower Directive was adopted on 23 October 2019, with the main objective of harmonising EU member states’ legislation in this area. The Directive had to be transposed in each state before 17 December 2021. France will therefore be slightly behind in its transposition.
The Directive brings a number of changes compared to the French legislative framework, including a broader definition of whistleblowers (the Directive does not include the criteria of ‘disinterest’ and ‘good faith’ on which whistleblower status depend in France), and more precise response deadlines, with an obligation for the internal or external recipient of the alert to acknowledge receipt within seven days and then to provide feedback within a reasonable period of time, which may not be longer than three months. By contrast, the Directive only protects individuals reporting breaches of EU laws and in a limited number of areas.
In France, the choice was made to submit two legislative bills to the Parliament to transpose the Directive into French law. The first one is a bill aimed at reinforcing the role of the ‘Defender of Rights’, an independent public institution responsible for protecting the rights and freedom of individuals and the fight against discrimination, including protection of whistleblowers. The second is a bill to improve protection of whistleblowers.
The main changes resulting from the new legal framework are set out below
Modified definition of whistleblower
From now on whistleblowers will have to act ‘without direct financial consideration and in good faith’ and no longer ‘in a disinterested manner’. This means good faith will remain a condition to be met in order for the whistleblower to benefit from legal protection, but the notion of ‘disinterest’ will be reduced to the absence of financial interest for the whistleblower, making it easier for employees or former employees to make protected disclosures.
The requirement of ‘personal knowledge’ of the facts reported is partly abandoned. Instead, a rule will be introduced according to which ‘when the information was not obtained in the course of his or her professional activities, the whistleblower must have had personal knowledge of it’.
Protection of whistleblowers extended to their entourage
The law now protects not only the whistleblower, but also ‘facilitators’, that is, any person or organisation acting under private non-profit law that has helped the whistleblower to report and disclose information relating to the facts denounced (e.g.: associations, trade unions, etc.).
Extended list of individuals who can file an internal alert
The possibility of reporting internally is now open, inter alia, to former employees of the organisation (where the information reported was obtained in the course of their employment), job applicants, managers, shareholders or partners of the company and its contractors and subcontractors.
Hierarchy of reporting channels abolished
Whistleblowers may now report an alert directly to the authorities, without prior internal reporting.
Psychological and sexual harassment
Whistleblower protection is extended to employees reporting psychological or sexual harassment.
The new legislation will therefore implement the Directive, while preserving the legal provisions which, since the Sapin II Law, have given a wider material scope to whistleblower protection in France, thus positioning it, according to the French Government, ‘at the forefront in Europe and even worldwide’.
In practice, these new provisions will require organisations to take certain actions.
Firstly, from the date of entry into force of an Application Decree (to be published), all organisations with at least 50 employees will have to update their internal whistleblowing policies to adapt them to the new legal provisions. It is therefore strongly recommended that organisations that have not already put in place a reporting channel start complying with the new provisions.
Organisations with fewer than 50 employees that are not subject to the obligation to set up a formal policy should nevertheless consider whether they should adopt such a procedure to govern the handling of any whistleblowing reports. They should, in any event, be made aware of the need to ensure compliance with the legal provisions for the protection of whistleblowers, in particular the prohibition on retaliatory measures, in the event that an employee, former employee or contractor makes a report or uses external reporting channels.
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