New Whistelblowing Regime under the Law Sapin II
Before the implementation of the Law 2016-1691 of December 9, 2016 on transparency, fight against corruption and modernisation of the economy (the so-called “Law Sapin II”, hereinafter “the Law”), fragmentary provisions relating to whistleblowing were adopted to protect, particularly against retaliation or discrimination, those who report certain acts or facts they have come across in the course of their duties (for instance, crimes and offences, acts of corruption, facts that question the safety of health products, serious risk to public health or environment…).
Some large groups had already established whistleblowing mechanisms on the basis of foreign legislation, such as the Sarbanes-Oxley Act, the scope of which extends to employees of French based companies.
According to the study issued by the Conseil d’Etat in February 2016, such provisions lack coherence as a whole, were not precise enough, and did not provide sufficient protection for whistleblowers.
The Conseil d’Etat therefore recommended the adoption of a common set of rules for all whistleblowing mechanisms which the Law Sapin II provides for. Redundant provisions have thus been repealed whilst others remain. Moreover, provisions relating to the financial sector or concerning civil servants and servicemen, whose content will not be further developed through the present publication, have also been implemented by the Law. This new whistleblowing regime described below came into force on December 11th 2016, subject to the implementation of a decree in respect of the professional warnings arrangements.
Criteria to be met by the whistleblower
To benefit from the protection regime, a whistleblower must meet the criteria set out in article 6 of the Law: “a whistleblower is a physical person who reports, selflessly and in good faith, a crime or an offence, a serious and obvious breach of an international commitment duly ratified or approved by France, of a unilateral act from an international organization issued on the basis of such commitment, of law or regulation, or a serious threat or harm to the public interest, of which he has personal knowledge”.
The Law sets up limits in respect of the content of the warning. Indeed, any facts, information or documents protected by the national defense secret, medical secret or lawyer-client confidentiality are excluded from the whistleblowing protection regime.
Reporting procedure to be followed by the whistleblower
To be entitled to the protection regime, the whistleblower must furthermore follow the reporting procedures implemented by the law.
In this respect, article 8 of the Law provides for a specific three-stage procedure within the workplace which does only concern the workers or external or occasional partners of the organisation called into question.
Such procedure is based on a graduation of reporting channels, from internal to external ones, depending on the response given by the recipient of the warning. The warning must first be addressed to the employer’s line manager, direct or indirect, or to a point of contact designated by the employer. In the absence of a response being provided within a reasonable time frame, the whistleblower will entrust the warning to judiciary or administrative authority or professional bodies, it being specified that the warning may be reported to the French national Ombudsman (Défenseur des droits) so as to be referred to the appropriate authority. As a last resort, in the absence of a response within a three months period by the authority involved, the warning can be disclosed to the public. However, in case of serious and imminent danger or in the event of a risk of irreparable damage, the first stage can be disregarded: the warning can be directly revealed to the above mentioned authorities and can be disclosed to the public.
In view of the above, enterprises with a workforce of at least 50 employees as well as certain public organisations must put in place appropriate arrangements for gathering warnings issued by their staff or external or occasional partners, the conditions of which remain to be specified by decree (contemplated to be issued in March 2017).
The confidentiality of the identity of the whistleblowers as well as of the people targeted and information gathered by all recipients of the warning must be guaranteed by these warning arrangements. Under certain conditions, these elements may be disclosed, it being specified that a breach of confidentiality is punishable under the Law.
Moreover, as from June 1, 2017, enterprises and groups whose mother company is located in France, with a workforce of more than 500 employees and whose annual turnover or consolidated annual turnover exceeds 100 million euros (as well as industrial and commercial public undertakings reaching such thresholds) must set up measures aiming at preventing and detecting acts of corruption and trading in influence, perpetrated in France or abroad, for instance by implementing a code of business and arrangements for gathering warnings issued by employees who have noticed infringements to this code.
Protection afforded to the whistleblower
Subject to certain conditions, the whistleblower is entitled to benefit from criminal immunity. According to article 7 of the Law, a person who breaches a secret protected by law when issuing a warning is not criminally liable if the disclosure is necessary and proportionate to safeguard the interests at stake, is issued within the reporting procedures set forth in the law (not only the above specific workplace reporting procedure but any other reporting procedures implemented by the law) and the person meets the criteria of whistleblower defined under article 6 of the Law.
Besides, specific protection is afforded against any retaliatory or discriminatory measures within the workplace. According to the Law, no one may be denied access to a recruitment procedure or to an internship or period of professional training and no employee may be sanctioned, dismissed or discriminated against, either directly or indirectly, notably in respect of compensation, profit-sharing measures, shares distribution, training, redeployment, assignment, qualification, classification, professional promotion, transfer, contract renewal, for having issued a warning in accordance with articles 6 to 8 of the Law. As a consequence, any decision or act taken against the employee in breach of the foregoing provision is null and void.
The Law furthermore provides for an adjustment in the burden of proof to the benefit of the worker if a dispute between the latter and his employer arises in consideration of the above forbidden decisions or acts.
In addition, in case of termination of an employment contract following the issuance of a warning, the employee may file a claim with the Conseil des Prud’hommes under the emergency proceeding (référé prud’homal).
In order to make the protection efficient, sanctions are provided against those who impede the reporting of a warning or instigate wrongful defamation proceeding against a whistleblower.
Limits to the protection of the whistleblower
Failure to comply with the criteria above mentioned as well as with the reporting procedures set forth in the law (within or outside the workplace as the case maybe) should in principle prevent the whistleblower from the protection regime either under criminal law or labor law; the jurisdictions could nevertheless appreciate the compliance of the whistleblower with the reporting procedure by taking into account the specific circumstances surrounding the issuance of the warning.
In any case, the reporting of acts known to be partially or totally inaccurate will definitely prevent the whistleblower from the protection and may constitute a ground for disciplinary sanctions, dismissal as well as for civil responsibility if the person targeted has been harmed. Besides, the whistleblower may be prosecuted under Article 226-10 of the Criminal law code on malicious accusations.