France has faced significant scandals in recent years related to whistleblowers. The Mediator case (a weight-loss drug, believed to have killed hundreds of people), is a notable example. At the time of these scandals, whistleblowers were not protected by a specific whistleblowing law in France.
However, in specific situations, laws against dismissal and discrimination in cases of environmental threats, conflicts of interest, harassment or criminal offenses, provided some layer of protection. Because of this scattered legislation, protections for whistleblowers were dubious, as no general protection was provided by Law.
This has changed with the enactment of the “Sapin II” Act enacted in 2016. Since then, French legislators passed a most stringent series of protections, clearly encouraging disclosure of information by whistleblowers without fear of retaliation or sanctions.
Definition of whistleblower
The Sapin II Act of 8 November 2016, supplemented by a decree of April 2017, defines whistleblowers as people who report or reveal, in good faith and without personal interest a crime or offense, a serious and clear violation of an international commitment, law, regulation, or a threat or a serious harm to the public interest.
Before this Act, France had six different regulations on whistleblowing regarding various sectors (e.g., financial, environmental, public sector) that were not uniform. The Sapin II Act is considered as a major step, as it creates a common status for whistleblowers regardless of the scope of the alert, which significantly increased their protections, and sets up a “professional” whistleblowing system as of January 1, 2018.
Only an individual can be considered as a whistleblower and raise an alert under French law, which means that a company cannot benefit from this status. The whistleblowers’s protection includes the employees of the company directly concerned by the alert, but also any “external” or “temporary” staff.
Whistleblowers benefit from criminal immunity which allows them to disclose information identified as confidential. This immunity applies provided that the information disclosed is necessary and proportionate to the preservation of the interests involved, and intervenes within the legal requirements. The intent of the whistleblowers should not be to harm the persons concerned by the alert. The protection granted to whistleblowers includes any disciplinary measure or sanction, based on the alert raised.
If an employer seeks to retaliate by dismissing a whistleblower because of a disclosure, the dismissal will be considered as discriminatory and thus null and void. The disclosure, however, of information considered as national secrecy, protected by the medical secrecy or the attorney- client privilege is not protected. The Sapin II Act intends to prevent any potential obstruction of a whistleblower by providing a sentence of imprisonment of up to one year, and a penalty of EUR 15,000 which could be pronounced in case of obstruction, or attempt to obstruct “in any manner”. If a company to seek a complaint for defamation against a whistleblower, a sentence of imprisonment of up to three years, and a penalty of EUR 30,000 could be incurred by the company.
All companies with at least 50 employees are required by French law to implement an internal disclosure procedure. This procedure must provide for the ways in which individuals report their disclosure, the person to whom the disclosure must be made (which must be the employee’s direct or indirect supervisor, the employer, or a specific person within the Company), and the measures taken to guarantee the confidentiality of the disclosure. The employer must inform employees of the procedure implemented within the company. There is no specific sanction provided by French law in case of non- compliance with the above requirements. Nevertheless, an employer that does not implement such a procedure could risk that confidential information be directly disclosed to the public through the press or social networks. In other words, if a process is not put in place by the employer, the employee is free to disclose the information in any way he/she wishes.
The EU draft Directive
The European Commission proposed in April 2018, a new Directive to strengthen the whistleblowers’s protection across Europe. Recently, on 20 November 2018, the Committee on Legal Affairs of the European Parliament adopted a report intending to increase the rights granted by the European Union to whistleblowers. While only 10 member states ensure a full whistleblower protection, the goal of the new proposed Directive would be to harmonize this protection throughout Europe and fill the gap created by reluctant countries that, have not yet ensured any whistleblowing protection. Only time will tell whether this EU legislation will have a positive impact by extending the protections throughout Europe to fight corruption.
Country-by-country and EU whistle-blowing rules need to be taken into account in setting the best practices and policies in this growing area of risk, including what an employer must do when faced with a whistle-blower claim, such as whether an investigation is required, protections of the employee who complained of company practices and litigation issues.
Best practice requires companies to take action in advance by creating a hotline and training its employees in ethical behavior.