Learn everything about the Whistleblowing Law in France
Tuesday, June 20, 2023
• 8 Minutes reading time
France's groundbreaking whistleblowing law, Law No. 2022-401, came into effect on September 1st, 2022, revolutionizing the landscape for reporting breaches and offering increased protection for whistleblowers. Aligning with the EU Whistleblower Directive (Directive (EU) 2019/1937), this comprehensive legislation expands the definition of a whistleblower and removes the requirement to report internally before seeking external help. As companies navigate their obligations under this new framework, understanding its key facets is crucial in ensuring compliance and safeguarding individuals who courageously speak up against wrongdoing.
- France's comprehensive whistleblowing law broadens the definition of a whistleblower to include various individuals and categories, allowing reporting without internal reporting requirements.
- The new legislation covers a wide range of topics including breaches of French law, general public interest violations, environmental crimes or health and safety concerns, gender-based harassment or discrimination in the workplace among others.
- Organizations must establish internal whistleblowing channels with multiple anonymous reporting options while involving employee representative bodies and promoting publicity measures within the company. They have until December 31st2012 to update their codes of conduct under criminal sanctions in non-compliance cases.
Overview Of France's Whistleblowing Law
France's comprehensive whistleblowing law, implemented on September 1, 2022, broadens the definition of a whistleblower to include various categories of individuals and allows reporting without internal reporting requirements.
Definition Of A Whistleblower
Under France's new Whistleblowing Law, a whistleblower is defined as any individual who reports or discloses information on breaches of French law, general interest concerns, crimes or offenses, violations of international commitments and European laws.
An essential aspect of this expanded scope is that whistleblowers are no longer required to have directly witnessed the facts they report. For example, a co-worker who learns about potential misconduct from another employee can use internal alert channels to raise awareness without being directly involved in the situation themselves.
Who Can Be A Whistleblower?
Under France's comprehensive whistleblowing law, the scope of who can be a whistleblower has significantly expanded. Individuals such as job applicants, former employees, shareholders, officers, business partners, subcontractors, and even those who report anonymously are now eligible to blow the whistle on improper activities.
For example, if a shareholder notices unethical practices within the company that threaten its reputation or stability and chooses to report this concern through an internal whistleblowing channel – they would be protected under France's new legislation.
Similarly, a contractor working for an organization may witness illegal activities but fear retribution from their employer; with the expanded protections available in France's whistleblowing law, reporting anonymously is also now possible without sacrificing legal safeguards.
Reporting Topics Covered
France's comprehensive whistleblowing law covers a wide range of reporting topics, ensuring that whistleblowers can effectively report misconduct and protect the public interest. These topics include:
- Crimes or offences under French law, such as fraud, corruption, or money laundering
- Breaches of international commitments in which France is a party, ensuring adherence to global standards and agreements
- Violations of European law, reflecting the country's commitment to upholding EU regulations and directives
- Acts or omissions likely to endanger public health or safety, highlighting the importance of safeguarding citizens and communities
- Threats or damage to the environment, emphasizing sustainability and environmental protection
- Gender - based harassment or discrimination in the workplace, promoting equity and fairness for all employees
These reporting topics demonstrate France's commitment to transparency and accountability across a broad array of legal issues. With the implementation of act n°2022-401 on 1st September 2022, whistleblowers will play an essential role in maintaining integrity within both public and private sectors.
Implementing The EU Whistleblower Directive
France has implemented the EU Whistleblower Directive through Law.
Status Of Implementation In France
France has implemented the EU Whistleblower Directive with the Sapin II law, which came into effect on September 1, 2022. The new law expands protection for whistleblowers and applies to all public and private entities with over 50 employees.
The law requires organizations to establish internal reporting channels, including anonymous alerts and group-wide reporting channels.
The French Human Rights Defender is responsible for ensuring compliance with the new law and managing external reporting procedures. Organizations have until December 31, 2022, to update their anti-corruption code of conduct in line with legal requirements or face criminal sanctions.
Overall, France's comprehensive whistleblowing laws are intended to encourage transparency in both public and private sectors while providing extensive safeguards for those who report serious breaches of French law or European legislation affecting general interests.
Additional Reporting Topics And Categories Of Persons
In addition to the reporting topics covered under France's comprehensive whistleblowing law, there are additional categories of persons and violations that whistleblowers can report. Here are some examples:
- Breaches of French labor code, public service code, or criminal code
- Violations of the anti - corruption code of conduct or other corporate social responsibility policies
- Breaches of French data protection laws or the EU General Data Protection Regulation (GDPR)
- White collar crime, such as embezzlement, fraud or insider trading
- Environmental crimes or health and safety violations
- Discrimination or harassment in the workplace
Whistleblowers can report these issues to a variety of external channels, including designated authorities within their industry sector or specific regulatory agencies. They may also be able to report to the French Human Rights Defender or seek guidance from their labor union or association. It is important for organizations to understand these reporting options and ensure that their whistleblowing procedures comply with all applicable laws and regulations.
The whistleblowing procedure in France includes a hierarchy of reporting channels, anonymous reporting options, involvement of employee representative bodies and publicity measures within the company to ensure transparency; read on to learn about the specific steps companies must take.
Hierarchy Of Reporting Channels
Whistleblowing procedures in France require companies to establish a hierarchy of reporting channels for whistleblowers to follow. This ensures that whistleblowers can report their concerns to the appropriate internal or external authority, without fear of retaliation. Here is a breakdown of the hierarchy of reporting channels:
- Internal whistleblowing channel: Companies with more than 50 employees must establish an internal whistleblowing channel that includes multiple reporting options, such as phone, email, or web-based reporting tools.
- External authority: Whistleblowers can also report externally to specific authorities or courts at the French or EU level if they believe their company is not addressing their concerns appropriately.
- Public disclosure: Whistleblowers can also make a public disclosure in certain cases where they believe it is in the general interest and if they have already reported to their employer or external authorities.
- Group-wide reporting channels: Companies may establish group-wide reporting channels that allow employees from different entities within the same group to file a complaint.
It's important for companies to establish and communicate this hierarchy of reporting channels clearly to ensure that whistleblowers know how and where to report any breaches of French law or violations of company policies.
France's new Whistleblowing Law, Law No. 2022-401, allows for anonymous reporting, which gives whistleblowers greater protection and promotes transparency and accountability within organizations.
Private sector entities now have the discretion to accept and act on anonymous reports. However, it is important to note that anonymous reporting does not absolve the whistleblower from their responsibility to provide accurate information in good faith.
Whistleblowers are encouraged to use internal channels whenever possible as they offer more legal safeguards than external ones.
Involvement Of Employee Representative Bodies
The role of employee representative bodies in France's whistleblowing law is not explicitly defined. However, organizations are encouraged to involve these bodies in the implementation and operation of internal reporting channels.
This involvement ensures that employees have a direct way of communicating their concerns to company management through their elected representatives.
Moreover, Given that the legislation aims to promote a culture of integrity and compliance across all sectors, such as employment & labor or IT & data protection; employers should consider engaging with employee representative bodies when developing policies and procedures around whistleblower protection.
Publicity Measures Within The Company
Publicity measures within the company refer to how organizations inform their employees and stakeholders about the existence of internal whistleblowing channels. Below are some ways companies can promote whistleblowing:
- Companies should include information about the whistleblowing procedures in their code of conduct, HR policies, and contracts.
- Employers need to train their staff on how to use the reporting channel, when it is appropriate to blow the whistle and who is eligible for protection.
- The company should highlight confidentiality protocols that protect whistleblower identity, and data protection regulations applicable for reporting allegations of law breaches while encouraging confident reporting.
- Publicizing a commitment to transparency and compliance with whistleblower protection laws would help build integrity trust within the organization while showcasing its dedication to ethics in governance and operations.
- Organizations could use posters, pamphlets or other communication tools that promote internal whistleblowing channels. These resources should be readily available in public places such as staff rooms, intranet sites or notice boards across various job locations.
- The company may consider assigning an official spokesperson responsible for answering questions related to the internal whistleblowing channel's purpose or expectations. This person could work either in HR, legal department or whoever executive-level leadership chose.
By implementing these proactive publicity measures within the company, employers demonstrate their commitment towards creating a culture of ethical leadership, transparency and accountability while protecting vulnerable parties from potential retaliation.
Data Protection And Outsourcing
Organizations must comply with French data protection laws when managing the reporting channel and consider conducting a Data Protection Impact Assessment (DPIA) before outsourcing their whistleblowing procedure.
Data Protection Obligations
The implementation and management of whistleblowing procedures must comply with data protection regulations in France. The following are the data protection obligations:
- Entities should conduct a Data Protection Impact Assessment (DPIA) before implementing or amending whistleblowing procedures.
- Processing data related to whistleblowers or reported information should be lawful, fair, and transparent.
- Collection of personal data should be limited to what is necessary for a specific purpose.
- Appropriate measures must be taken to ensure confidentiality and prevent unauthorized use or disclosure of personal data.
- Companies must designate a person responsible for overseeing compliance with data protection laws related to whistleblowing procedures.
- Whistleblowers have the right to access and correct their personal information gathered during the reporting process.
- Information may only be shared externally with authorized third parties such as law enforcement agencies or regulatory bodies who have a legal basis to access the information.
- Personal data related to whistleblowing should not be retained for longer than necessary.
In summary, companies must take extra care to ensure that they process any personal data within the confines of French law while implementing and managing their internal whistleblowing channels. Failure to comply could result in criminal sanctions such as imprisonment and fines.
Managing The Reporting Channel
Organizations must have a clear and effective reporting channel to receive reports from whistleblowers in compliance with the French Comprehensive Whistleblowing Law. This includes implementing measures to ensure confidentiality, data protection, and anonymity whilst still managing the reporting process efficiently.
Employers can choose to outsource their reporting channels or build internal processes using readily available software like OneTrust. The Data Protection Impact Assessment (DPIA) plays an essential role in ensuring best practices are in place for data handling and processing of personal information.
Outsourcing options can be used to manage the reporting channel for whistleblowers. This involves appointing a third-party service provider to receive and manage reports. Some important facts related to outsourcing options and data protection in France's Comprehensive Whistleblowing Law are:
- Organizations must conduct a Data Protection Impact Assessment (DPIA) prior to outsourcing the management of their whistleblowing scheme.
- The DPIA must assess the nature, scope, context, and purposes of processing personal data and identify risks to the rights and freedoms of individuals.
- The appointed service provider must be bound by confidentiality obligations equivalent to those set out in the legislation.
- The organization must inform whistleblowers that their information will be disclosed to a third - party service provider.
- Service providers must comply with French data protection laws, including GDPR regulations.
- The organization remains responsible for ensuring compliance with whistleblowing legislation when outsourcing management of their whistleblowing scheme.
Organizations should consider outsourcing options carefully as they have legal obligations towards protecting their employees who report any breaches or violations under French law.
The new law provides increased protection for whistleblowers and imposes fines of €60,000 for organizations that take abusive or dilatory court actions against whistleblowers.
Scope Of Protection
The scope of protection under France's whistleblowing laws has significantly expanded. In addition to protecting whistleblowers who report breaches of EU law, individuals can now also report breaches of French law or any threats to the general interest.
The protection extends not only to the whistleblowers themselves but also includes facilitators, individuals connected with the whistleblower, and entities controlled by or connected to the whistleblower.
This comprehensive protection means that organizations must be careful not to interfere or retaliate against any individual who reports violations in good faith and highlights potential violations within their organization.
One of the key aspects of France's comprehensive whistleblower law is the provision for support measures for whistleblowers. These support measures are designed to provide protection, assistance, and guidance to whistleblowers who choose to come forward with information about breaches of French law. Some of the support measures that are available under France's whistleblower law include:
- Financial Assistance: Whistleblowers in France may be eligible for financial assistance if they experience retaliation or face other adverse consequences as a result of their reporting.
- Protection from Retaliation: Employers are prohibited from retaliating against whistleblowers in France, and individuals who experience retaliation can seek legal remedies through labor courts.
- Assistance from Facilitators: Whistleblowers can receive assistance from trained facilitators who can provide guidance on how to report concerns and navigate the whistleblowing process.
- Criminal Immunity: Whistleblowers in France are protected from criminal prosecution if they report breaches of French law in good faith and without malice.
- Access to External Reporting Channels: In addition to internal reporting channels, whistleblowers in France can also access external reporting channels such as regulatory bodies or public interest organizations.
These support measures are critical for encouraging individuals to come forward with information about violations of French law and play a vital role in promoting accountability and transparency within organizations. It is essential that companies understand their obligations under France's comprehensive whistleblower law and take steps to ensure that employees feel safe and supported when reporting concerns about potential wrongdoing.
Risks And Sanctions For Abusive Reporting
Whistleblowing comes with a certain level of responsibility, and reporting unproven facts maliciously or for personal gain constitutes an abusive report. Under French law on whistleblowing, making false accusations can result in up to five years in prison and a fine of €45,000.
Additionally, organizations that take dilatory or abusive court action against whistleblowers can be fined up to €60,000 as a deterrent. Interfering with the communication of a report is also considered a criminal offense and can lead to imprisonment of up to one year and a fine of €15,000.
It is essential to understand that the law aims at combating corruption by protecting individuals who expose breaches of French law committed by their employer. However, if whistleblowers do so falsely or maliciously risks sanctions under French labor code public service code criminal code anti-corruption code of conduct including fines or even imprisonment.
Company Obligations And Sanctions
Companies are required to implement a whistleblowing procedure that ensures the confidentiality, independence, and impartiality of those reporting violations, with penalties such as imprisonment and fines for non-compliance.
Implementing A Whistleblowing Procedure
To implement a whistleblowing procedure in France, companies must follow specific requirements regarding independence, impartiality, confidentiality, and data protection. Here are the key steps to consider:
- Establish and maintain internal whistleblowing channels: Companies with over 50 employees must establish and maintain internal reporting channels that enable employees to report any breaches of French law or violations of the company's anti-corruption code of conduct.
- Ensure confidentiality: The whistleblower's identity must remain confidential throughout the entire process to avoid retaliation or harm.
- Provide anonymity option: Companies should offer anonymous reporting options to encourage honest reporting without fear of retaliation.
- Involve employee representative bodies: Employee representative bodies such as unions or works councils should be involved in the whistleblowing process to ensure that the organization is transparent and accountable.
- Develop publicity measures within the company: Companies should develop a communication plan for both employees and stakeholders that promotes awareness of the new procedure and encourages reporting.
- Manage data protection obligations: Companies must comply with French data protection laws when implementing whistleblowing procedures by conducting Data Protection Impact Assessment (DPIA) and ensuring that personal data is processed fairly, transparently, and securely while maintaining confidentiality.
- Consider outsourcing options: To ensure impartiality, organizations may outsource their whistleblowing channels to third-party service providers who can manage reports on their behalf while ensuring confidentiality.
In summary, implementing a whistleblowing procedure requires careful planning and consideration of legal requirements such as maintaining confidentiality and protecting personal data under French law. With OneTrust's solutions and resources, companies can implement effective procedures that promote transparency, accountability while protecting their employees' rights.
Penalties For Non-compliance
Organizations that fail to comply with France's whistleblowing law may face severe penalties, including fines and imprisonment. The table below outlines some of the key penalties associated with non-compliance.
|Abusive or dilatory court action against a whistleblower||Fine of €60,000|
|Interfering with the transmission of a report||Imprisonment and fines|
|False accusation by a whistleblower||Up to five years' imprisonment and a fine of 45,000 EUR|
|Interfering with the communication of a report||Up to one year of imprisonment and a fine of 15,000 EUR|
It is essential for organizations to ensure compliance with the whistleblowing law, as these penalties can result in significant financial and reputational damage. By implementing a robust whistleblowing procedure and cooperating with external authorities, companies can protect themselves and promote a transparent and accountable work environment.
Organizations covered by France's comprehensive whistleblowing law are required to cooperate with competent external authorities within specific sectors, including the public sector and money laundering.
The aim is to prevent collusion or damage to their reputation as an employer, which can lead to further legal implications. In situations where it is necessary, employers should use the whistleblowing channel to inform competent authorities about punishable facts.
Failure to do so may result in fines of up to €60,000 for organizations that do not comply with this mandatory requirement. Moreover, obstructing communication regarding reports from whistleblowers or taking abusive measures against them can also lead to a civil fine of €60,000 and imprisonment for interfering with communication on criminal sanctions regarding the reporting process under French law.
Those who falsely accuse others through whistleblowing could face imprisonment and financial penalties as well.
Sector-Specific Procedures And Exemptions
The new French whistleblowing law includes special procedures for certain industries and exemptions for smaller organizations, ensuring that reporting is tailored to the unique needs of each sector and company.
Special Procedures For Specific Industries
Certain industries in France have been provided with specific procedures and exemptions under the whistleblowing law. These include:
- Financial institutions: They are required to establish a dedicated reporting channel, appoint a compliance officer, and conduct an annual review of their whistleblowing system.
- Healthcare sector: The law exempts healthcare providers from addressing cases related to professional misconduct if they have already been reported to the competent medical council.
- Public entities: Whistleblowers can report directly to the French Human Rights Defender instead of going through the designated authorities.
- Defense sector: Reporting is subject to confidentiality requirements that limit access to information within authorized personnel only.
- Media organizations: They are exempted from part of the obligation for internal reporting, provided there is no threat of serious and imminent danger or that the report concerns a criminal offense or breach of professional ethics or code of conduct.
These procedures aim to align with industry-specific regulations and ensure that whistleblowers can report any wrongdoing without any fear of retaliation while also providing necessary protections for sensitive information.
Exemptions For Smaller Organizations
Entities with fewer than 50 workers are exempt from France's Comprehensive Whistleblowing Law. This means that if an organization has less than 50 employees, they do not have to implement whistleblowing procedures under the directive or implementing law.
However, if an exempt organization decides to set up a whistleblowing scheme, the directive and implementing law will still apply. Keep in mind that while smaller organizations may be exempt from this legislation, failure to comply with reporting requirements can still lead to legal trouble as well as reputational damage for non-compliance with whistleblower protection laws.
France's new comprehensive whistleblowing law is a significant step towards ensuring greater transparency and accountability in organizations. With the expanded definition of a whistleblower, increased protection, and provisions for anonymous reporting, employees can now report breaches with more confidence.
Organizations must follow the procedures outlined in the law to remain compliant and avoid penalties. The regulation enables France to fulfill its international commitments while aligning with European law on whistleblowing.
By understanding France's whistleblowing framework, companies can improve their compliance management systems and promote ethical conduct within their organizations.