Compliance in France: New regulation on whistleblowing of employees
The "Sapin 2" law1 , which entered into force on 11 December 2016, significantly improves the legal protection of whistleblowers in France. Before the introduction of these regulations, the protection of whistleblowers was only applicable in certain areas of activity (health, environment, administration, etc.). As a result of the reform, all employees are now protected, regardless of the area of activity. Protected is any natural person who in good faith reports or otherwise discloses a crime, misdemeanour, violation of international obligations, laws, regulations or a threat to the general interest. The person must act altruistically and not in bad faith.
The law provides that the employee must first notify his or her immediate superior, his or her employer or the person designated by him or her to report the violation. If the addressee of the report doesn’t verify the information within a reasonable period of time, the employee may inform the judicial and administrative authorities, as well as the relevant professional chamber. If they do not process the report, the employee may make the grievance public.3
The whistleblower may also seek the help of the Defender of rights (défenseur des droits) to know whom to turn to. Preventing the disclosure of such information is punishable by law. Companies with at least 50 employees4 must put in place appropriate internal procedures to ensure the collection of employee warnings. These procedures must ensure that the identity of the employee and any information he/she discloses is kept confidential.
Violations are punishable by law. Companies with at least 500 employees and a turnover in excess of 100 million euros must launch an anti-corruption programme from 1 June 2017. This includes the establishment of measures that must also ensure the collection of warning messages from employees.
The whistleblower is protected by law (article 1132-3-3 paragraph 2 of the French Labour Code). The employer is forbidden to punish or discriminate against the employee because of his warning message. Any countermeasures taken by the employer are null and void. If the employee is dismissed because of a warning, he or she may now claim legal protection in summary proceedings before the labour courts.
If the warning notice concerns secrets protected by law, the employee is not liable to prosecution only if publication is necessary and appropriate in view of the protected interest. This protection from criminal prosecution is linked to compliance with the statutory notification procedure described above, but will ultimately be within the judge's decision-making powers.
Finally, the whistleblower who doesn’t act in good faith and knows that the information is false may be dismissed. He may also be held criminally liable for false accusation and liable for damages under civil law.