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

Whistleblowers are people who, working for, or in contact with, a public or private organization in the course of their professional activities, discover acts likely to cause serious harm to the public interest, and who decide to report them within this organization or to disclose them to the public in order to prevent the harm that could result if they remained concealed. Although such whistle-bl …

Sources

Whistleblowers are people who, working for, or in contact with, a public or private organization in the course of their professional activities, discover acts likely to cause serious harm to the public interest, and who decide to report them within this organization or to disclose them to the public in order to prevent the harm that could result if they remained concealed. Although such whistle-blowing is desirable both for the organization and for the public interest, when it is not based on false allegations or motivated solely by the perpetrator's intention to cause harm, it exposes him or her to a not inconsiderable risk of reprisals. This is why the protection of whistle-blowers has gradually become a major issue at international, European and French level.

At international level, Article 5(c) of Convention 158 of the International Labor Organization  stipulates that “the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse  to competent administrative authorities” does not constitute valid grounds for dismissal. More recently, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression devoted a report to the protection of sources of information and whistle-blowers . According to this document, the motivation of the whistleblower at the time of disclosing information should not be taken into consideration in determining whether he or she is entitled to protection, as long as the information disclosed is true and relevant. The rapporteur also recommends that internal and external institutional whistle-blowing mechanisms provide whistle-blowers with effective channels of disclosure that guarantee their protection, in order to motivate them to seek corrective action. In the absence of such channels, it recommends promoting and protecting public disclosure.

At European level, the Court of Human Rights protects whistleblowers on the basis of freedom of expression, enshrined in Article 10 § 1 of the European Convention on Human Rights. In its landmark “Guja v. Moldova” judgment of 12 February 2008 , the Court defined six criteria which it has since systematically taken into consideration in assessing the proportionality of the infringement of their freedom of expression in relation to the legitimate aim pursued . These criteria are: the public interest served by the information disclosed; the authenticity of the information disclosed; the harm caused to the employer; the good faith of the whistle-blower; and the severity of the sanction imposed on the person who disclosed the information and its consequences . Furthermore, Resolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistleblowers” of 29 April 2010 recognizes the importance of whistleblowers, who “help to combat corruption and mismanagement in both the public and private sectors”. Under the terms of this resolution, any legislation relating to whistle-blowers should seek first and foremost to offer a safe alternative to silence, and protect anyone who uses, in good faith, existing internal channels to blow the whistle against any form of reprisal (unfair dismissal, harassment or any other discriminatory treatment or sanction). The text stresses that where internal channels for whistle-blowing do not exist, or do not function properly, those who use external channels, including the media, should also be protected. The resolution specifies that all whistle-blowers are presumed to be acting in good faith, provided they have reasonable grounds for believing that the information disclosed was true, even if it subsequently turns out that this was not the case, and provided they are not pursuing unlawful or unethical objectives. A subsequent resolution of 1 October 2019 , stresses that the recognition accorded to whistle-blowers and the effectiveness of their protection in law and in fact against all kinds of reprisals constitute a genuine “democratic marker”. With this in mind, it recommends that the definition of whistle-blower be broad, to encompass any natural or legal person who, in good faith, discloses or reports a crime or misdemeanor, a violation of the law or a threat or harm to the general interest of which he or she has direct or indirect knowledge. Similarly, on 30 April 2014, the Committee of Ministers of the Council of Europe adopted a recommendation calling on the governments of Member States to establish a protective normative, institutional and judicial framework for persons who, in the context of their employment relationships, report or reveal information concerning threats or harm to the general interest . Following on from these incentive texts, on 23 October 2019, Directive No 2019/1937  was adopted, establishing common minimum standards for the protection of persons who report breaches of EU Law.

In French law, the first protective provisions for whistle-blowers were introduced in labor law by the 13 November 2007 law on the fight against corruption , within Article L. 1161-1 of the Labor Code, now repealed. Subsequently, the Law of 6 December 2013 on combating tax fraud and serious economic and financial crime  provided broader protection for whistle-blowers who, in good faith, denounce facts constituting an offense or crime of which they have become aware in the course of their duties, through Article L. 1132-3-3 of the same code, within the chapter on the principle of non-discrimination . However, it wasn't until the Sapin II Law of 9 December 2016  that a truly protective status for whistle-blowers was enshrined in domestic law. Concomitantly with this law, the legislator gave jurisdiction to the Defender of Rights , an independent administrative authority, to guide and protect whistleblowers . The latter has published a guide for whistleblowers, as part of its mission to inform, guide and protect. Finally, the Waserman Law of 21 March 2022  transposed Directive  2019/1937 of 23 October 2019 and amended certain provisions of the Sapin II Law accordingly.

ILO Convention concerning the Termination of Employment at the Initiative of the Employer of 22 June 1982.

Amended twice, by the Sapin II Law in 2016 and by the Waserman Law in 2022.

Law No 2016-1691 of 9 December 2016, relating to transparency, the fight against corruption and the modernization of economic life, JO of 10 December 2016, known as the Sapin II Law.

Organic Law 2016-1690 of 9 December 2016 on the competence of the Rights Defender for the guidance and protection of whistleblowers, OJ of 10 December 2016, amending Organic Law 2011-333 of 29 March 2011 on the Defender of Rights (Défenseur des droits) .

Law No 2022-401 of 21 March 2022, aimed at improving the protection of whistle-blowers, JO of 22 March 2022, known as the Waserman Law.

ECHR, 12 February 2008, LawLex202300011715JBJ.

ECtHR, 8 January 2013, LawLex202300011716JBJ; 14 February 2023, LawLex202300012189JBJ, refining the terms of the balancing operation to be carried out between the competing interests at stake by specifying that, beyond the harm caused to the employer alone, it is all the harmful effects that the disputed disclosure is likely to entail that must be taken into consideration in order to rule on the proportionate nature of the interference with whistleblowers' right to freedom of expression protected by Article 10 ECHR.

The Social Division of the Court of Cassation has transposed European case law, basing the protection of employee whistleblowers on freedom of expression. It thus considers that “by reason of the infringement it causes to freedom of expression, in particular to the right of employees to report unlawful conduct or acts they have observed in the workplace, the dismissal of an employee for having reported or testified, in good faith, of facts of which he has become aware in the course of his duties and which, if established, would be of such a nature as to characterize criminal offences or breaches of ethical obligations provided for by law or regulation, is null and void”, Cass. soc., 30 June 2016, LawLex202300011726JBJ; 7 July 2021, LawLex202300012188JBJ; 19 January 2022, LawLex202300012095JBJ.

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.

Law No 2007-1598 of 13 November 2007 on the fight against corruption, OJ of 14 November 2007.

Law No 2013-1117 of 6 December 2013 on the fight against tax fraud and serious economic and financial crime, OJ of 7 December 2013.

Compliance

69. Sources

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Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

69. Sources

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Les décisions de justice citées dans ce paragraphe :

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Les notions juridiques connexes

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