"Whistleblowers often risk their careers and livelihoods, and in some cases, serious repercussions on their finances, health, reputation and personal lives. In order to prevent wrongdoing and to defend the public interest, it is essential to ensure that those who dare to speak are properly protected. "
This is stated by the European Commission in its communication of 23th April 2018.
What measures are in place to protect whistleblowers? Who are the people concerned by the protection regime? Can all secrets be revealed? What is the evolution of whistleblower protection?
It is to all these questions that we will try to answer.
1) The legal status of the whistleblower (lanceur d’alerte) and its framework of protections created by Sapin II law
Law 2016-1691 of December 9th, 2016, known as the "Sapin Law" created a status for whistleblowers and thus offered them a protective regime.
According to the Defender's annual report (https://www.defenseurdesdroits.fr/en/annual-reports/2019/03/annual-repor...), the Sapin law "has allowed the emergence of a awareness of the role that everyone can play in the development of reports and in the moralization of public life ".
1.1) The definition of the whistleblower according to Sapin II law
Article 6 of the Sapin II law defines the whistleblower as follows: "A whistleblower is a natural person who reveals or reports, disinterestedly and in good faith, a crime or offense, a serious and manifest violation of an international commitment duly ratified or approved by France, a unilateral act of an international organization taken on the basis of such an undertaking, law or regulation, or a serious threat or harm to the public interest, of which it has been personally aware. "
1.2) The general device for protecting whistleblowers
1.2.1) Certain secrets are excluded from the alert regime
It is important to note that the law excludes from the scope of the operative part "Facts, information or documents, whatever their form or medium, covered by the secrecy of national defense, medical confidentiality or the secrecy of relations between a lawyer and his client are excluded from the alert regime defined by this chapter. "(Article 6).
1.2.2) The reporting procedure to be followed
The reporting procedure to be complied with is described in article 8 of the Sapin 2 law.
The procedure must be carried out:
- To the hierarchical superior, direct or indirect, of the employer or a referent designated by him;
- In some cases, by outside and casual collaborators.
1.2.3) What protection?
Whistleblowers are protected against professional retaliation and thus benefit from a reduction in the burden of proof.
They also benefit from the regime of criminal irresponsibility in the event that the report resulted in the violation of a protected secret.
In addition, their identity is kept strictly confidential: non-compliance with the obligation of confidentiality of their identity is penalized, as is the fact of hindering the reporting, in any way whatsoever.
Moreover, in case of abusive procedure for defamation, the civil fine is doubled.
2) The rights defender (Défenseur des droits) has a guiding and protective role for whistleblowers
According to article 5 ° of article 4 of the organic law n ° 2011-333 of March 29th, 2011, the defender of the rights is in charge to direct towards the competent authorities any person signaling an alert under the conditions fixed by the law, to ensure the rights and freedoms of this person by ensuring his protection.
It should be noted that the role of the defender of rights is neither to judge if the alert is well founded, nor to treat the alert, nor to stop the facts or acts denounced.
2.1) The whistleblower's mission
At first, the rights defender analyzes the facts evoked by the person wishing to launch an alert.
Then, it tells the whistleblower how to make its alert (for example, what is the administrative authority to enter).
If the facts that the person wishes to relate do not fall within the protection of whistleblowers, the defender of the rights, having an orientation mission, inform him.
As part of its orientation mission, the human rights defender has published a practical guide explaining the rights of whistleblowers. (Guide - orientation and protection of whistleblowers, https://defenseurdesdroits.fr/en/guides/guide-orientation-et-protection-...).
2.2) The protection mission of the whistleblower
The mission of the rights defender is to stop retaliation against the whistleblower, which would have appeared as a result of his report.
In order to carry out this mission, the defender of rights may, in particular, use his powers of investigation as well as specific powers regarding the adjustment of the burden of proof.
3) The Legislative Millefeuille is a barrier to the effectiveness of an effective whistleblower and whistleblower
There are several legislative provisions regarding whistleblowers, in addition to the Sapin II law.
For example, the law of 27 March 2017 on the duty of vigilance of parent companies and corporate issuers that requires companies with at least 5,000 employees in France or 10,000 worldwide to establish a vigilance plan incorporating a mechanism alert or the Sarbanes-Oxley Act of 2002 which introduces other warning systems).
According to Jacques Toubon, defender of rights, there is a real "millefeuille des alerte" (Lamy Social Week, Nº 1862, May 20, 2019 - Is the "general" whistleblower protection regime the expression of a fundamental right ?).
As such, he asserts that there is a great need: "a review of the various whistleblower protection regimes with a view to making the legislation significantly more clear and operational".
According to him, "the simplification of the legislation and the security of the whistleblowers are indeed essential to create the conditions of an effective device of treatment of the reports and protection of their authors".
4) The adoption of a European directive on whistleblowers: towards an overall overhaul of French law?
On 16 April, the European Parliament adopted new whistleblower protection rules.
According to Pascale Lagesse, "the adoption of a European directive on the whistleblower could be the occasion of an overall overhaul of the French law of the alert which became more complex at high speed" (Social Week Lamy, Nº 1862, May 20, 2019 - Is the "general" whistleblower protection regime the expression of a fundamental right?
Indeed, the new text aims to encourage and protect the reporting of infringements of EU legislation.
Thus, the whistleblowers will have the choice between an internet report and an external report.
In addition, protective measures against reprisals by employers are put in place.
- LAW n ° 2016-1691 of December 9th, 2016 relating to the transparency, the fight against the corruption and the modernization of the economic life
- Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee - Strengthening the protection of whistle-blowers at EU level - 23.4.2018 COM (2018) (http: //ec.europa .eu / transparency / regdoc / rep / 1/2018 / FR / COM-2018-214-F1-EN-MAIN-PART-1.PDF)
- Guide - orientation and protection of whistleblowers, https://defenseurdesdroits.fr/en/guides/guide-orientation-et-protection-des-lanceurs-dalerte
- Annual report of the defender of rights (https://www.defenseurdesdroits.fr/fr/rapports-annuels/2019/03/repport-annuel-dactivite-2018
Frédéric CHHUM, avocat and Member of the Council of the Bar Association of Paris (membre du conseil de l’ordre des avocats de Paris)
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083