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

Directly inspired by the case law of the European Court of Human Rights , which was the first to define the status of whistleblowers on the basis of freedom of expression , the Sapin II Law , amended by the Waserman Law of 21 March 2022  on the occasion of the transposition of Directive No 2019/1937 , in turn enshrines a general definition of whistle-blowers in Article 6 . Under Article 6 of the S …

Natural person of good faith not seeking financial gain

Directly inspired by the case law of the European Court of Human Rights , which was the first to define the status of whistleblowers on the basis of freedom of expression , the Sapin II Law , amended by the Waserman Law of 21 March 2022  on the occasion of the transposition of Directive No 2019/1937 , in turn enshrines a general definition of whistle-blowers in Article 6 . Under Article 6 of the Sapin II Law, a whistle-blower is any natural person  who reports or discloses, without direct financial consideration and in good faith, information concerning a crime, an offense, a threat or harm to the general interest, a violation or an attempt to conceal a violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such a commitment, of EU law, or of a law or regulation.

When the whistl-blower is a member of staff, a person whose employment relationship has ended, a person who has applied for a job with the entity concerned, a shareholder, a partner, a holder of voting rights in the entity's general meeting, a member of the administrative, management or supervisory body, an external and occasional collaborator, a co-contractor of the entity concerned, their sub-contractor or, in the case of legal entities, a member of the administrative, management or supervisory body of these co-contractors and sub-contractors, or a member of their staff, they may, under certain conditions, benefit from the protective regime .

The Waserman Law introduced a new distinction, depending on whether the whistle-blower learned of the information in the course of his or her work, or outside it. Whereas, initially, the whistle-blower always had to have personal knowledge of the facts denounced, he or she can now relay information that was relayed to him or her indirectly, in the context of his or her professional activity. The requirement of personal knowledge of the information is now imposed only outside the professional sphere .

Article 6 reserves the benefit of protection to whistle-blowers acting in good faith: they must not be motivated by the intention to cause harm or to disseminate information they know to be false . Individuals who report in compliance with the Sapin II Law benefit from a simple presumption of good faith, which it is up to the employer to overcome . A whistleblower must be considered to be acting in good faith if his or her attachment to the undertaking is demonstrated by his or her appraisal interviews, and if the content of the whistle-blowing letters does not reveal any malice or animosity towards the company . The mere fact that the facts reported have not been established, possibly following an internal investigation, is not sufficient to constitute a motivation of bad faith: it is still necessary to demonstrate knowledge of the falsity of the information provided . Indeed, the courts will accept that an employee may be mistaken as to the characterization to be given to the facts reported, or may be concerned about facts that ultimately prove to be unfounded, provided that he or she has reported them in good faith and with reasonable grounds for believing them to be true in the light of the information available to him or her . Furthermore, in determining the whistleblower's good faith, it is immaterial whether the facts reported were discovered by chance or after a requested investigation, following personal knowledge of the facts in question . On the other hand, an employee is considered to be acting in bad faith if he or she makes an external report even though he or she has been informed of the sanction taken against the person he or she is reporting to, which he or she considers to have educational value .

The Waserman Law also amended the wording of Article 6 of the Sapin II Law, replacing the “disinterested” character  of whistle-blowing with the absence of any search for “direct financial consideration”. Until then, the legislator's intention had been to reserve the status of whistle-blower to those who took action in the general interest, and not in the expectation of financial or personal gain, or for an exclusively personal purpose, notably in the context of a dispute with their employer . Henceforth, the whistle-blower's personal interest no longer constitutes an obstacle to benefiting from protection.

ECtHR, 12 February 2008, LawLex202300011715JBJ; 14 February 2023, LawLex202300012189JBJ.

CA Versailles, 19 July 2023, LawLex202300011626JBJ, holding that it is up to the employer to establish that the employee knew that he was falsely reporting wrongdoing.

Déf. droits (Defenderof Rights), 22 October 2020, LawLex202400003132JBJ; 14 April 2021, LawLex202400003131JBJ.

Cass. soc., 8 July 2020, LawLex202300011727JBJ; 15 February 2023, LawLex202300007980JBJ; Versailles, 19 July 2023, LawLex202300011626JBJ; Cass. soc., 13 September 2023, LawLex202300011562JBJ. Cf. Cass. soc. 13 January 2021, LawLex202300011772JBJ, holding that an employee who relates facts of discrimination which he knows to be false cannot claim the protection afforded to whistle-blowers.

CA Pau, 28 January 2021, LawLex202300012087JBJ, holding that the fact that the statutory auditor ultimately approved the company's accounts does not call into question the employee's good faith, when at the time of reporting, he had concrete evidence of a nature to legitimately fear a serious breach of the law. Rappr. Cour EDH, 12 February 2008, LawLex202300011715JBJ, emphasizing that the authenticity of the information disclosed, which is a factor in assessing infringements of the whistle-blower's freedom of expression, requires the latter to check carefully, insofar as circumstances allow, that it is accurate and trustworthy.

CA Versailles, 19 July 2023, LawLex202300011626JBJ.

CA Amiens, 29 March 2023, LawLex202400003175JBJ.

Cass. soc. of 13 September 2023, LawLex202300011562JBJ, holding that an employee who reported or testified to facts constituting a misdemeanor or a crime of which he had become aware in the performance of his duties without resorting to the whistleblowing mechanism of the Sapin II Law was not subject to the requirement to act in a disinterested manner.

CA Lyon, 24 October 2019, LawLex202300011725JBJ; Déf. droits, 22 October 2020, LawLex202400003132JBJ; 14 April 2021, LawLex202400003131JBJ; CAA Bordeaux, 21 December 2023, LawLex202400003111JBJ, holding that whistle-blower status must be denied to an employee who appears to be acting in the context of profound disagreements with his hierarchy that long predate his reporting. Rappr. Versailles, 19 July 2023, LawLex202300011626JBJ, considering that the whistle-blower's candidacy for the position held by the person denounced is not sufficient to demonstrate bad faith, since this argument is irrelevant in view of the knowledge of the falsity of the facts denounced.

Law No 2016-1691 of 9 December 2016, relating to transparency, the fight against corruption and the modernization of economic life, OJ of 10 December 2016.

Law No 2022-401 of 21 March 2022, aimed at improving the protection of whistle-blowers, OJ of 22 March 2022.

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.

Cons. constit., 8 December 2016, LawLex202300011724JBJ, specifying that the coexistence of this general definition of whistleblower with that resulting from Article 8 does not have the effect of rendering these provisions unintelligible, since it is intended to apply not only to the cases provided for by Article 8, but also, where appropriate, to other whistle-blowing procedures introduced by the legislator, outside the professional framework.

TA Strasbourg, 30 January 2024, LawLex202400003126JBJ, reserving the status to natural persons.

Cons. constit., 8 December 2016, LawLex202300011724JBJ, considering that it follows from the terms and purpose of Articles 8 and 10 to 12 of the Sapin II Law, that the legislator intended to limit the scope of application of article 8 to whistle-blowers making a report targeting the organization that employs them or the one to which they provide their collaboration in a professional context.

CA Chambéry, 6 April 2023, LawLex202300011637JBJ, illustrating the requirement of personal knowledge of the facts before the Waserman Law came into force.

Court of Human Rights, 12 February 2008, LawLex202300011715JBJ, emphasizing that the motivation of the employee making the disclosure is a determining factor in assessing whether or not the action should benefit from protection, so that it is important to establish whether the person concerned, in making the disclosure, acted in good faith and in the belief that the information was genuine.

Compliance

70. Natural person of good faith not seeking financial gain

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

70. Natural person of good faith not seeking financial gain

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise