EU Whistleblowing Directive - France

Existing whistleblower protection

France adopted a first law in 2013 (Law n°2013-1117 of 6 December 2013) to protect whistleblowers, then a second one in 2016, with the so-called “Sapin 2” law (Law n°2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernization of economic life), which completed the protective mechanism.

On 16 February 2022, the law aimed at transposing the European directive 2019/1937 was definitively adopted. It was validated by the Constitutional Council on 17 March 2022, and officially issued on 21 March 2022 and entered into force on 1st September 2022. Eventually, an Enforcement Decree may come into force to specify implementation of the Law. Particularly, to include establishment of the list of competent authorities that will process external alerts. The implementing decree was published on 3 October 2022. We are reviewing the content.

This law was presented by the deputy, Sylvain Waserman, as “the best protection for whistleblowers in Europe” and corrects the shortcomings of the existing French legislative arsenal by going beyond the protections provided by the European directive.

The Defender of Rights published a new Whistleblower’s Guide on 30 March 2023. The guide takes into account the new legislative and regulatory provisions governing the status of whistleblowers and the procedures for collecting information from whistleblowers, resulting from the law of 21 March 2022 (and its implementing decree published on 3 October 2022).

The Defender of Rights can provide information on implementation of the rules specific to whistleblowers, direct whistleblowers to the public authorities whose mission it is to collect external alerts, or give an opinion to authors of whistleblowing reports on their status as whistleblowers, in the form of a certification.

It is therefore a successful gamble for French lobbyists who wanted a prompt transposition of the Directive with provisions going beyond the minimum base of protections provided by the Directive.

The main contributions of the law

1. Broadening the definition of whistleblower

From now on, a whistleblower is defined as a natural person who reports or discloses, in good faith and without direct financial compensation, information concerning a crime, an offence, a threat or a prejudice to the general interest, a breach or an attempt to conceal a breach of the international, European or national law

It should be noted that the new law removes two elements: (i) the requirement of the “serious and manifest” breach of the law and (ii) the need for the whistleblower to have personal knowledge of the facts reported. Similarly, from now on, whistleblowers must no longer be "disinterested" but must not receive "direct financial compensation".

2. The end of the hierarchy of internal and external reporting channels

From now on, the whistleblower is no longer required to begin with an internal report but can choose between an internal or external direct alert.

However, public disclosures (after an external or internal report) are to be reserved:

• if the external report is not processed after a certain period of time
• if there is a risk of retaliation or if the report has no chance of succeeding, or
• in case of serious and imminent threat of danger to the whistleblower, or manifesting an imminent danger to the general public.

However, the law makes one notable exception: an alert cannot be immediately made public if it affects the interests of defence and national security.

Companies have the challenge of setting up an efficient internal procedure, in order to limit the use of external channels and public disclosure.

3. The Internal procedure for collecting and processing alerts

Companies employing at least 50 employees continue to be required to set up an internal procedure for collecting reports. The law further specifies that this is also a processing procedure and that the social and economic committee must be consulted before this procedure is set up. A decree is expected to specify the rules concerning the time limits for receiving and returning information.

For groups of companies employing more than 250 employees, the procedure may be centralised at the group level.

For companies with more than 500 employees and a turnover of more than €100 million euros, there is an obligation to put in place the special mechanism of art. 17 of the Sapin 2 Law (measures to prevent and detect corruption or influence peddling).

4. The Strengthened protective measures

Discrimination related to whistleblowing is prohibited. The list of such discriminations is reinforced, as well as the creation of a list of reprisals from which the whistleblower could suffer, regardless of status, and the prohibition of threats or attempts to resort to such reprisals.

Those surrounding a whistleblower, such as facilitators, natural persons and non-profit legal entities, are also protected.

The internal regulations will also need to be revised to include this protection mechanism.

5. Prohibited retaliation

The text creates a list of prohibited reprisals applicable to any whistleblower, regardless of their status, and prohibits threats or attempts to resort to such reprisals (disciplinary measures, intimidation, etc.). The penalty for “gagging” procedures (defamation) is increased to €60,000.

6. New status for the entourage of whistleblowers

Extension of certain protections offered to whistleblowers:

• to facilitators who assist in reporting or disclosure
• to natural persons and non-profit legal entities (unions and associations) who are related to the whistleblower, and
• legal entities controlled by a whistleblower.

7. Civil and criminal liability of the whistleblower

• Exemption from civil liability: the law provides for an exemption from civil liability of the whistleblower for damages caused when they had reasonable grounds to believe that the whistleblowing was necessary to safeguard the interests at stake.
• Exemption from criminal liability: the Sapin 2 law already provided for the exemption from criminal liability of a whistleblower who breaches a secret protected by law if the disclosure was necessary and proportionate to protect the interests at stake. The new law broadens the scope of this lack of criminal liability: the whistleblower is not criminally liable when they remove, misappropriate or conceal documents or any other medium containing information of which they have lawful knowledge. The courts that judge such situations will therefore check the proportionality and the necessity of the offence committed for the purposes of exercising the right to alert.

Two recent rulings from the Supreme Court (Cour de Cassation) has shed further light on this:

• On 1 June 2023, the Court asserted that an employee’s dismissal due to their report or testimony to facts likely to constitute a misdemeanour (délit) or a felony (crime) may be nulled and void (and whistleblower protection thus applies) if the judge finds that the facts denounced are likely to constitute a misdemeanor or a felony, and that the employer could not legitimately be unaware that the employee was reporting such facts. The report must therefore be quite specific in order for the individual to benefit from protection and judges, when assessing whether the protection should be granted, should analyse it carefully.

• On 13 September 2023, the Court reiterated that an employee who reports or testifies to facts constituting an offence or crime of which they may have become aware in the course of their duties is not subject to the requirement to act in a disinterested manner. This condition has in fact been removed by the recent law on whistleblowing. The only requirement is that the whistleblower must not have acted in bad faith (which can only result from knowledge of the falsity of the facts denounced) and without direct financial consideration.