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

According to Article 6 of the Sapin II Law, the information that may be reported or disclosed must necessarily relate to 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 E …

Object of report

According to Article 6 of the Sapin II Law, the information that may be reported or disclosed must necessarily relate to 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. Reporting must, in fact, serve the general interest.

The text does not require whistleblowers to classify the facts they denounce at the reporting stage . It is sufficient that the information, obtained in the context of professional relations, relates to facts that have occurred, or are very likely to occur, in the entity concerned, and that they may constitute an offense or crime , or of such a nature as to constitute a serious and manifest breach of the law, a threat or harm to the general interest . Accordingly, an employee who denounces breaches of health and safety rules which are likely to constitute a criminal breach of the employer's health and safety obligation, as provided for in Article L. 4741-1 of the Labor Code, and the offense of deliberately endangering the life of others, punishable under Article 223-1 of the Criminal Code, as well as serious breaches of animal protection rules, punishable under the criminal offense of serious abuse or cruelty to animals, is a whistle-blower within the meaning of Article 6 of the Sapin II Law . The same applies to an employee who reports facts likely to give rise to the offenses of corruption of a private individual, punishable under Articles 445-2 and 441-1 of the Criminal Code, and forgery of a private document, punishable under Article 445-1 of the same code, as well as a breach of the Group's ethical rules . Some rulings, however, seem to go further than the text, by requiring that the reported violation be penalized , whereas Article 6 only refers to the commission of a felony or misdemeanor as examples of acts constituting a violation of the law or regulations. On the other hand, an employee who contacts his employer's customers anonymously to inform them of the latter's failure to meet his obligations towards them cannot claim whistle-blower status, provided that the non-performance, even if deliberate, of contractual services does not constitute a crime or misdemeanor, or a threat or serious prejudice to the general interest . The same applies to an employee who has not reported or testified to facts likely to constitute a misdemeanor or felony of which he or she may have become aware in the course of his or her duties, but merely alleges an infringement of his or her right to communicate freely with the trade unions of the client to which he or she is seconded . Lastly, a person whose duties consist in ensuring the tax compliance of transactions carried out by his employer cannot be considered a whistle-blower when he warns the latter of the tax and criminal risks involved in the planned transaction, since he is merely exercising his duties .

Nor is it necessary for the facts reported to be provided for and punishable under the law of the country in which they are alleged to have been committed: the whistle-blower may, under the law punishing such facts in the national legislation of the company on whose behalf he is working, report in good faith what he considers to be misdemeanors or crimes, even if committed abroad .

Nor does the European Court of Human Rights require that the information disclosed be of an essential, new or hitherto unknown nature, as long as it concerns a public interest in relation to a debate already underway, and taking into account the public's legitimate interest in knowing about it .

In addition, Article 6, II provides for an exception concerning the information to be reported. The protection regime does not apply to the reporting of information or documents, whatever their form or medium, covered by national defense secrecy, medical secrecy, the secrecy of judicial deliberations, the secrecy of judicial inquiries or investigations, or the professional secrecy of lawyers.

See European Court of Human Rights, 12 February 2008, LawLex202300011715JBJ, emphasizing that information concerning the separation of powers, the abuse of office by high-ranking political figures and the government's attitude to police brutality is of public interest, in the light of which the proportionality of the infringement of the whistle-blower's freedom of expression is assessed.

CA Grenoble, 5 November 2020, LawLex202300011623JBJ, specifying however that the whistle-blower must be able to explain what offense or crime he could or could have committed at least at the time he invokes the provisions of Article L. 1132-3-3 of the Labor Code.

CA Versailles, 19 July 2023, LawLex202300011626JBJ.

ECtHR, 14 February 2023, LawLex202300012189JBJ, concerning information of a fiscal nature, relating to the optimization practices of large multinational undertakings.

CA Pau, 28 January 2021, LawLex202300012087JBJ, for accounting irregularities.

Def. droits, 28 May 2020, LawLex202400003133JBJ.

Def. rights, 14 April 2021, LawLex202400003131JBJ. See also CA Versailles, 16 September 2021, LawLex202400003109JBJ.

CA Dijon, 21 December 2023, LawLex202400000069JBJ, emphasizing that the violation of Art. R. 5124-22 CSP is not penalized. See also Cass. soc. on 1 June 2023, LawLex202300007979JBJ, holding that the dismissal of an employee, following his denunciation by e-mail of facts which have not been established as constituting an offense or crime, cannot be annulled.

CA Riom, 19 January 2021, LawLex202300012466JBJ.

Cass. soc., 4 November 2020, LawLex202300012089JBJ.

CA Paris, 16 January 2019, LawLex202400002937JBJ.

Compliance

71. Object of report

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

71. Object of report

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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