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

The French Anti-corruption Agency (Agence française anticorruption AFA) specifies that the whistleblowing system must be deployed throughout the perimeter of the entities controlled by the undertaking . It recommends that the system be implemented in several stages , which require the undertaking to:
1° establishing a formal procedure, including the appointment of a designated contact person to re …

Setting up whistleblowing system

The French Anti-corruption Agency (Agence française anticorruption AFA) specifies that the whistleblowing system must be deployed throughout the perimeter of the entities controlled by the undertaking . It recommends that the system be implemented in several stages , which require the undertaking to:

1° establishing a formal procedure, including the appointment of a designated contact person to receive and/or deal with alerts, and the setting up of a committee, made up of qualified individuals subject to reinforced confidentiality obligations, to ensure collegial decision-making on the action to be taken on the alerts received;

2° present the whistleblowing system in the code of conduct, which refers to the procedure;

3° disseminate the internal whistle-blowing procedure to all staff by any means (management letter, posting, intranet site, hand-delivery, etc.) to ensure that everyone concerned is aware of it and has access to it ;

4° present the whistleblowing system as part of awareness-raising initiatives for all staff;

5° train staff involved in the collection, management and processing of alerts, in particular on confidentiality obligations, and train the most exposed staff;

6° implement first- and second-level controls on the internal whistle-blowing procedure, and integrate the whistleblowing system (like all other corruption prevention tools) into the internal audit control plan as a third-level control;

7° define indicators to assess the quality and effectiveness of the alert system (number of alerts received, closed or processed, processing times, issues raised, etc.), which will be transmitted to the governing body.

The management of the system, including the role of referent, may be subcontracted to a third party, provided that the latter has the skills required to process the alerts properly and to ensure confidentiality, and that the undertaking provides it with the means to process the alerts, in particular by facilitating access to the relevant internal undertaking departments. The services provided within this framework must be subject to regular checks .

Other whistleblowing systems may coexist, within the same organization, with that provided for in Article 17 of the Sapin II Law . This is the case with the internal whistleblowing mechanism provided for under Article 8 of the same law, designed to bring to the undertaking's attention information concerning a crime, an offense, a threat or harm to the general interest, a violation or attempted concealment of 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, European Union law, French statutes or regulations. The same applies to the mechanism provided for in Article L. 225-102-4 of the Commercial Code, created by the Law of 27 March 2017  on the duty of vigilance of parent companies and prime contractors, which organizes the collection of alerts concerning risks and serious infringements of human rights and fundamental freedoms, the health and safety of individuals and the environment, resulting from the undertaking's activities and those of subcontractors or suppliers with whom it has an established business relationship, when these activities are linked to this relationship. In the interests of clarity, the AFA recommends the introduction of a single system for the internal collection and management of business alerts . This common system implies the establishment of a reporting procedure open not only to staff members, but also to external and occasional collaborators (temporary staff, trainees, service providers, employees of subcontracting undertakings, etc.)  and must allow for separate reports, under different regimes.

Lastly, the AFA stresses that the whistleblowing system must be secure, and that access rights must be restricted to personnel authorized to receive and process alerts .

AFA recommendations to help public and private legal entities prevent and detect corruption, influence peddling, misappropriation of public funds and favoritism of 4 December 2020, JORF of 12 January 2021, pt 261.

Ibid, pt 259: the internal alert system is presented immediately to new employees.

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

Law No 2017-399 of 27 March 2017, relating to the duty of vigilance of parent companies and primary contracting undertakings, JORF of 28 March 2017.

Compliance

49. Setting up whistleblowing system

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Les notions juridiques connexes

49. Setting up whistleblowing system

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Les notions juridiques connexes

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