Amendments

Scope and definitions

The Law makes several crucial changes to France's current whistleblowing-related legislation. For example, the definition of a whistleblower is amended so that instead of the requirement to act 'in a disinterested manner and in good faith', whistleblowers will have to act 'without direct financial compensation and in good faith' in order to be afforded protection. Furthermore, such definition is expanded to include attempts to conceal a violation amongst the acts which, when reported/publicly disclosed, may grant whistleblower status.

Moreover, while there was previously a strict requirement for a whistleblower to have 'personal knowledge' of the act being reported, this will no longer be required in cases where the individual is reporting on facts that have occurred or are likely to occur within the organisation, that they have become aware of in the course of their professional activities. The scope of protection has also been extended to cover:

• 'facilitators', meaning individuals or non-profits that help a whistleblower make a report/disclosure;
• individuals with a connection to the whistleblower, who may suffer as a result of reprisals; and
• entities that are controller by the whistleblower, that they work for, or which they are related to in a professional context.

Reporting processes

The Law provides that individuals who obtain relevant information in the course of their professional activities may report this information internally, in particular when they consider that it is possible to effectively remedy the violation in this way and they are not exposed to any risk of reprisal in doing so. The professional activities which are covered by this include:

• employees and ex-employees who have obtained the information within the framework of the employment relationship;
• individuals who have applied for employment at the relevant organisation, when such information was obtained within the context of the application;
• shareholders, associates, and holders of voting rights within the general meetings of the organisation;
• members of the administrative, managerial, or supervisory body;
• external and occasional collaborators; and
• co-contractors, sub-contractors, or members of the relevant administrative, managerial, or supervisory body of the co-contractors or sub-contractors, as well as their staff.

In line with this, the Law requires that all organisations with at least 50 employees will be required to establish internal procedures for collecting and processing whistleblower reports (subject to some narrow exceptions for certain public sector bodies). Otherwise, reports may be made to a direct/indirect supervisor, the employer, or a designated referee. Furthermore, per the Directive, organisations employing less than 250 individuals may share resources for the collecting and processing of reports (in compliance with an implementing decree to be issued in the future).

Notably, the Law abolishes the general requirement for an internal report to be made prior to any external report, when sent to the following authorities:

• to a competent authority as determined by the aforementioned future decree;
• to the Defender of Rights;
• to the judicial authority; or
• to an institution, body, office, or agency of the EU competent to collect breaches within the scope of the Directive.

The Law also expands on the circumstances when an individual may make a public disclosure as a protected whistleblower; for example, when sending an external report to one of the authorities listed above would expose the reporter to the risk of reprisal or if this would make it not possible to effectively remedy the subject of the disclosure (i.e. if evidence relating to the report may be concealed/destroyed, or if the individual making the report has serious grounds for believing the authority may have a conflict of interests). A public disclosure may also be made following an external report, if no appropriate measure is taken in response to such report.

With regards to confidentiality, this is now required not only for the whistleblower themselves and the person in regards to whom a report is submitted, but also for any third parties mentioned in the report.

Anonymous whistleblowers

The Directive provides that Member States may decide whether legal entities in the private and public sectors and competent authorities should be required to accept and follow up on anonymous reports of breaches. On this matter, the Law confirms that organisations will not be required to follow up on internal or external reports made anonymously. However, if a report of public disclosure is made anonymously and the whistleblower's identity is subsequently revealed, such individual will be afforded protected status.

Reprisals

The Law adds to the pre-existing protections against reprisals, providing that whistleblowers who make reports or public disclosures may not be held liable for damages caused as a result of their reporting/disclosure, when they had reasonable grounds to believe, in doing so, that such reporting/disclosure was necessary to safeguard the interests in question.

Moreover, the Law adds to the list of prohibited reprisals against whistleblowers. The full list of prohibited reprisals now includes:

• suspension or lay-off;
• demotion or refusal of promotion;
• transfer of functions, change of workplace, reduction of salary, or modification of working hours;
• suspension of training;
• negative performance evaluation or work certificate;
• disciplinary measures, reprimands, or other sanctions, including financial sanctions;
• coercion, intimidation, harassment, or ostracism;
• discrimination, disadvantageous, or unfair treatment;
• non-conversion of a fixed-term or temporary contract into permanent employment, when the employee has legitimate expectations of such;
• non-renewal or early termination of a fixed-term/temporary contract;
• damage, including reputational damage, particularly in a public online context, or financial loss (including financial loss or loss of income);
• blacklisting, on the basis of a formal or informal agreement at the branch/sector level, which may negatively impact the individual's chances of employment in that sector/industry;
• early termination or cancellation of a contract for goods or services; and
• cancellation of a licence/permit.

Finally, the Law increases the civil fine for any abusive court action against a whistleblower to €60,000.

Conclusion

While the deadline of 17 December 2021 for transposing the Directive has now passed, the definitive adoption and promulgation of the Law nevertheless introduces a suite of changes to the rules for whistleblowing in France, bringing the national framework closer to EU standards. The Law will enter into force six months after the date of its promulgation.

Troy Boatman Editor
[email protected]

1. See: https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000045388745 (only available in French).