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

Internal whistleblowing is reporting wrongdoing to a person within the undertaking. This method is only possible if the individual has obtained the information relating to the alert in the course of his or her professional activities, and if he or she is, or has been, in a professional relationship with the undertaking in question. This also applies to external or occasional employees . The intern …

Internal reporting

Internal whistleblowing is reporting wrongdoing to a person within the undertaking. This method is only possible if the individual has obtained the information relating to the alert in the course of his or her professional activities, and if he or she is, or has been, in a professional relationship with the undertaking in question. This also applies to external or occasional employees . The internal reporting procedure must enable the employer to take all necessary steps to investigate and, if necessary, remedy the facts reported.

The internal channel is no longer compulsory, but once it has been set up within the structure, staff members, persons whose employment relationship has ended, those who have applied for a job within the entity concerned, shareholders, partners, holders of voting rights in the entity's general meeting, members of the administrative, management or supervisory body, external and occasional collaborators, as well as the co-contractors of the entity concerned, their subcontractors or, in the case of legal entities, the members of the administrative, management or supervisory bodies of these co-contractors and subcontractors, as well as the members of their staff, may use it, in particular if they consider that it will enable the violation to be remedied effectively and that they are not exposing themselves to a risk of reprisals.

The law distinguishes the procedures to be followed according to the size of the undertaking employing the whistle-blower. Under Article 8 of the Sapin II Law, legal entities under private law or undertakings run in their own name by one or more natural persons employing at least fifty people are required to set up an internal procedure for collecting and processing whistle-blowers' reports, after consultation with social dialogue bodies. Although the procedure may differ from one structure to another, it must at least enable the whistle-blower to know to whom the report should be addressed within the undertaking, how it should be addressed, what information should be transmitted and what precautions should be taken to preserve the confidentiality of the report. Articles 4 to 8 of the Decree of 3 October 2022  set out the practical details of the internal whistleblowing procedure.

Under Article 4, the procedure must set up a channel for receiving alerts, enabling a report to be sent either in writing or orally, depending on the option chosen. If the procedure provides for the possibility of reporting orally, it must specify that this can be done by telephone or any other voice messaging system and, at the request of the person reporting and according to his or her choice, during a video conference or physical meeting organized no later than twenty working days after receipt of the request. The channel for receiving reports must allow for the transmission of any element, whatever its form or medium, likely to support the report. The procedure must also provide for the author of the alert to be informed, in writing, of the receipt of the alert, within seven working days of its receipt.

When a whistleblower's report is received via the established reception channel, the undertaking must verify that the conditions set out in Article 6 and Article 8, paragraph A of Article 8 of the Sapin II Law, concerning the qualities required of a whistle-blower, have been met, unless the report is anonymous. To this end, it may request any additional information from the author of the alert, and must inform him or her, where appropriate, of the reasons why the alert does not meet the required conditions.

If, on the other hand, these conditions are met, the undertaking must process the report. Where the allegations appear to be substantiated, the undertaking must use all available means to remedy the situation. Within a reasonable period of time, not exceeding three months from the date of acknowledgement of receipt of the report or, in the absence of acknowledgement of receipt, three months from the expiry of a period of seven working days following the report, the undertaking is required to provide the author of the report with written information on the measures envisaged or taken to assess the accuracy of the allegations and, where appropriate, to remedy the matter reported, as well as the reasons for such measures.

Conversely, the undertaking will close the alert if the allegations appear to be inaccurate or unfounded, or if the alert has become irrelevant. The author of the alert must be informed in writing.

Article 5 of the decree stipulates that the procedure must indicate the person(s) or department(s) designated to receive and process alerts. The channel for receiving and processing alerts may be handled by different people or departments. It is imperative that the persons or departments designated have, by virtue of their position or status, the competence, authority and resources required to carry out their tasks. The procedure must provide guarantees that these missions will be carried out impartially. Article 7 of the decree allows these functions to be outsourced, provided that the designated third party complies with the same obligations as those to which the undertaking is subject.

Lastly, Article 8 requires the undertaking to disclose the procedure by any means ensuring sufficient publicity, in particular by notification, posting or publication, on its website or by electronic means where appropriate, in such a way as to make it permanently accessible to staff members, shareholders, partners and holders of voting rights at the general meeting, members of the administrative, management or supervisory bodies, external and occasional employees and contractors of the undertaking, their subcontractors or, in the case of legal entities, members of the administrative, management or supervisory bodies of these contractors and subcontractors, as well as members of their staff.

Smaller undertakings with fewer than fifty employees, on the other hand, are not required to set up a specific internal procedure for collecting and processing reports. In this case, the report may be made to the direct or indirect supervisor , the employer or a representative designated by the latter. In the absence of a response from the line manager, the employee may, where appropriate, refer the matter to the Group's Ethics, Integrity and Corporate Responsibility Department's whistleblowing committee . In addition, if an employee wishes to alert the undertaking to conduct attributed to his or her line manager, he or she may report the matter externally to be granted whistle-blower status .

Cons. constit., 8 December 2016, LawLex202300011724JBJ.

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

European Court of Human Rights, 12 February 2008, LawLex202300011715JBJ, holding that, in view of the duty of discretion imposed on civil servants, it is important that they should first make disclosure to their superior or to another competent authority or body, while disclosure to the public should be considered only as a last resort, in the event of manifest impossibility of acting otherwise.

Def. droits, 22 October 2020, LawLex202400003132JBJ; 14 April 2021, LawLex202400003131JBJ.

CA Lyon, 24 October 2019, LawLex202300011725JBJ.

Compliance

73. Internal reporting

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

73. Internal reporting

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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