Sapin II Law - Whistleblowing systems (Article 8)

It purposes to specify the conditions of Article 8 of Law No. 2016-1691 dated 09 December 2016, also called “Sapin II”. This Article requires that companies with over 50 employees should implement whistleblowing systems, as well as some public entities.

Article 8 of Sapin II Law states that whistleblowers should first alert their managers or another designated person within the company. If they do not receive any response regarding the admissibility of the alert, then they can direct it towards a public authority. The alert can be made public only as a last resort. Only in cases of serious and imminent danger or in cases of irreversible damages it can immediately be released to the public. The “Défenseur des droits” (French Commissioner for Human Rights) is entitled to direct a whistleblower towards the appropriate organisation to process its alert.

Article 4 of the Ministerial Order gives more details about the “designated person” within the company. The Ministerial Order creates the notion of “referent” of the company, besides the immediate manager. The referent is nominated by the company. It can be an external entity. It can be either an individual or a company, be it a legal entity or not. It should be adequately competent, and have the authority and means to carry out its functions.

Article 5 details the procedure which should be implemented to process alerts. The procedure should enable the communication between the manager or referent and the whistleblower. The whistleblower should also be quickly informed that his/her alert has been received. He/She should then be given the estimated amount of time needed to determine the admissibility of said alert. The procedure should also provide for the practical conditions of alert processing. The procedure should ensure strict confidentiality to the whistleblower, the targeted people, and of the information collected while processing the alert. Third parties can be made aware of information gathered for the needs of alert processing, as long as confidentiality is guaranteed. If no action is taken, the alert and any related document shall be deleted within two months after decision on admissibility. The whistleblower and targeted people should be informed of the end of the procedure. The procedure should mention that the National Commission for Data Protection and Liberties (CNIL) has authorized the procedure.

Article 6 indicates how the procedure should be communicated to employees. It shall be notified, displayed or published on the public website of the company if possible. It should be accessible to employees, agents, external third parties of the company. It can be communicated electronically.

The Ministerial Order will come into effect on 01 January 2018.

However Article 17 of Law Sapin II introduces the obligation to implement an anti-corruption plan within companies which have at least 500 employees and a turnover over €100m. Among other measures, this plan consists in implementing an internal whistleblowing system in order to detect behaviours or situations that contravene the company’s code of conduct. This specific anti-corruption alert system should be implemented as of  01 June 2017, regardless of Ministerial Order No. 2017-564.