Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

External whistleblowing consists in bringing the alert to the attention of the public authorities, by contacting an institution designated by law, known as an “external authority”. While it is preferable for such whistleblowing to take place after internal whistleblowing, since the latter is intended to reconcile the duty of loyalty of employees with the public interest served by the information i …

External reporting

External whistleblowing consists in bringing the alert to the attention of the public authorities, by contacting an institution designated by law, known as an “external authority”. While it is preferable for such whistleblowing to take place after internal whistleblowing, since the latter is intended to reconcile the duty of loyalty of employees with the public interest served by the information in question, external whistleblowing is no longer  conditional on any prior internal whistleblowing, so that it can take place directly, or even, if the whistle-blower sees fit, in parallel with internal whistleblowing.

External whistleblowing is the preferred option, particularly in the absence of a response from management, when the response does not seem sufficient or appropriate, or when the employee feels that it is not possible to remedy the violation effectively internally and that he or she runs the risk of reprisals, particularly in view of the supposed involvement of management .

The whistle-blower may refer the matter to one of the authorities designated by the Decree of 3 October 2022 , depending on the field concerned by the alert, the Rights Defender, in the event of difficulty in determining the competent authority, the judicial authority, or a Union institution, body or agency competent to gather information on violations falling within the scope of Directive No 2019/1937 of 23 October 2019. Whistle-blowers should choose the authority whose field of competence best corresponds to the subject of their alert. The Rights Defender thus considers that a report made to an authority competent to receive the alert in question complies with the conditions of Article 8 of the Sapin II Law . However, the authority in question must be an administrative authority within the meaning of Article 8, i.e. on the list drawn up by the Decree of 3 October 2022, so that an employee who prefers to report to an independent advisory body, rather than to the competent public prosecutor's office, cannot be granted whistle-blower status .

External authorities are required to make available to whistleblowers, on their websites, the rules of procedure they apply, as well as the means by which they can be contacted. While the procedure may vary from one authority to another, it must provide the same minimum information and the same guarantees as those imposed on entities required to set up an internal procedure. The rules governing the external whistle-blowing procedure are very similar to those applicable to the internal whistle-blowing procedure. However, there are a few differences.

Firstly, under Article 10, II of the 2022 decree, if the authority concerned considers that the alert does not fall within its remit, or that it also falls within the remit of other authorities, it is obliged to forward it without delay to the competent external authority or to the Rights Defender, under conditions that guarantee the integrity and confidentiality of the information it contains. The author of the report must be informed of this transmission.

However, response times differ from those for internal procedures: while external authorities are obliged, like their internal counterparts, to provide an initial response within three months, giving details of the actions planned or already taken to assess the reality of the alert and remedy the situation reported, they are granted the option of extending this deadline for a further three months, if the particular circumstances of the case, notably its nature and complexity, require further investigation.

The Law 2022-401 of 21 March 2022, aimed at improving the protection of whistle-blowers, OJ of 22 March 2022, known as the Waserman Law has in fact repealed the graduated procedure initially provided for by the Sapin II Law, in order to bring French law into line with EU law, stemming from Directive No 2019/1937 of 23 October 2019 on the protection of persons who report violations of EU law, OJ L 305 of 26 November 2019, 17. See, rejecting whistle-blower status in the event of non-compliance with the graduated procedure, under the former wording of Art. 8, CA Amiens, 29 March 2023, LawLex202400003175JBJ; CA Aix-en-Provence, 14 February 2019, LawLex202400004696JBJ.

CA Lyon, 24 October 2019, LawLex202300011725JBJ, considering that if the employee may think it unreasonable to make an internal whistleblowing report, given a supposed involvement of his hierarchy, he may make it externally.

Decree 2022-1284 of 3 October 2022, relating to the procedures for collecting and processing whistle-blower reports and establishing the list of external authorities instituted by Law 2022-401 of 21 March 2022 aimed at improving the protection of whistle-blowers, OJ of 4 October 2022.

Déf. droits, 28 May 2020, LawLex202400003133JBJ, relating to the seizure of the Direction départementale de la protection des populations (DDPP), responsible for auditing, as in this case, establishments using animals for scientific purposes.

CA Lyon, 24 October 2019, LawLex202300011725JBJ.

Compliance

74. External reporting

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

74. External reporting

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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