[co-author: Ambre Dalbes]*
On October 23, 2019, the Council of the European Union and the European Parliament voted to approve European directive n°2019/19371 on "the protection of persons who report breaches of Union law." In France, this directive is in the process of being implemented via two bills2 the French Parliament recently adopted. The purpose of these bills is to improve the status of whistleblowers as defined in French law under the Sapin II Act.3 These two bills are under consideration by the Constitutional Council, which should deliver its opinion before the end of March 2022.
The following provisions are subject to delayed enforcement; they are scheduled to take effect the first day of the sixth month following the promulgation of the Law.4 Pending the publication of these two Laws and the publication of the implementing decrees, the new legal whistleblowing framework is summarized below.
An expanded whistleblower qualification
The current article 6 of the Sapin II Act defines a whistleblower as:
a person who discloses or reports, disinterestedly and in good faith, a crime or misdemeanor, a serious and manifest violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such a commitment, of the law or regulations, or of a serious threat or prejudice to the general interest, of which he has personal knowledge.
According to the new Law, this definition will be extended to persons:
reporting or disclosing, without direct financial consideration and in good faith, information regarding a crime, an offence, a threat or harm to the general interest, a violation or an attempt to conceal a violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such a commitment, of the law of the European Union, or of the law or regulation.5
The whistleblower would no longer have to justify "disinterestedness" but only "absence of direct financial compensation." In addition, the requirement of a "serious and manifest" violation of a rule of law is removed. These two modifications would allow both an expansion of the definition of the report/disclosure (alert) and the qualification of its author as a whistleblower.
Article 1 of the proposed Law would create an exemption related to the source of the information that is the subject of the alert. Thus, “when the information has not been obtained in the context of the professional activities mentioned in I of Article 8, the whistleblower must have had personal knowledge of it.”6 This exemption would allow the information reported to whistleblowers, i.e., not directly known by whistleblowers themselves, to qualify as an official alert. Thus, any information relating to the violation or attempted violation of rule of law, known directly or indirectly by an employee, would qualify as an alert.
This easing of the conditions for reporting/disclosure will probably encourage more alerts, whose collection and processing procedure will also be simplified.
A simplified alert procedure
In order to comply with the requirements of the European directive, the proposed Law aimed at improving the protection of whistleblowers will remove the current order of priority given to whistleblowing reporting channels. Specifically, the bill introduces a free choice of reporting channel for whistleblowers.
Reporting to the employer or its representatives will no longer be a prerequisite for external processing of the alert. Internal reporting will instead be deemed an option and would be used by whistleblowers only when they "believe[] that it is possible to remedy the violation effectively by this means and that it does not expose [them] to a risk of retaliation."7 In all likelihood, whistleblowers will be able to choose the external channel for reporting their alert.
These external alerts will be issued to a list of competent authorities, the details of which will be the subject of a decree of application in French Administration High Court (Conseil d’Etat) to be published. However, companies are not exempted from the obligation to set up an internal procedure for collecting and processing reports for internal and external employees.
This obligation, already instituted by the Sapin II Law and concerning companies employing at least 50 employees, will be the subject of a future decree. Companies that have not complied with this obligation are invited to follow closely the publication of the next application decree by the Conseil d’Etat.
In addition, the proposed Law requires the designation of a whistleblower representative within the company, who will be responsible for collecting and processing alerts.
Finally, the proposed Law provides that a company’s internal regulations or policies must mention the existence of the whistleblower system.8 The objective of encouraging whistleblowing cannot be achieved without strengthening the protective regime offered to whistleblowers.
Strengthening the protection of whistleblowers and their professional and personal entourage
Whistleblowers are already protected against retaliatory measures, threats or attempts to resort to measures of dismissal and/or sanctions. The proposed Law reinforces these protections by explicitly prohibiting "harm, including damage to the reputation of the person, in particular on an online public communication service, or financial loss, including loss of business and loss of revenue.”9
By expanding protections in this fashion, the assessment of what constitutes “harm” could lead to difficulties of interpretation and application. This broad protection will be extended to new beneficiaries belonging to the professional or personal entourage of the whistleblower.
Article 2 of the proposed Law offers protection identical to that of whistleblowers to “facilitators, understood as any natural person or any non-profit private law legal person who helps a whistleblower to carry out a report or disclosure…” and to “natural persons in connection with a whistleblower … who risk being the subject of one of the measures mentioned in the context of their professional activities on the part of their employer, their client or the recipient of their services.”10 Thus, this protective regime could apply to trade unions, associations, the employee's professional entourage, and staff representatives. However, no duration associated with this protection is provided for by the new provisions, which will leave such questions to judges through future litigation.
Under the influence of European law, the bills reflect the will of the national legislator to confer a privileged status to whistleblowers. The provisions of the bills exceed the European requirements and demonstrate a real commitment by France to protect whistleblowers.
*Associate with Littler France.
Footnotes
