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The protection of the whistleblower

The protection of the whistleblower

From now on, organizations are required to set up an internal alert system to collect reports from employees regarding the existence of conduct or situations that contravene the company's code of conduct.

This involves developing clear procedures and identifying the persons responsible for receiving such reports.

According to the law, a whistleblower is "a natural person who reveals or reports, in a disinterested manner and in good faith, a crime or misdemeanour " committed in the company or organisation in which he or she works.

The whistleblower must not act out of personal grievance or in the hope of receiving any reward.

Also concerned are persons who denounce "a serious and manifest violation of an international commitment (...) of France, or a serious threat or prejudice to the general interest".

The scope of the information concerned is therefore extremely broad, since only facts, information or documents covered by medical secrecy, defence secrecy or the secrecy of relations between a lawyer and his client are excluded from the alert system.

The author of the alert may be an internal collaborator of the company, but he may also be external: temporary worker, trainee, service provider, or subcontractor.

For the alert to be admissible, the reporting procedure, established within the company, must be scrupulously followed. This procedure is compulsory for both public officials and private sector employees.

The law provides for a graduated alert procedure, with three levels.

1. Alerting a referent: a hierarchical superior or a third party designated by the company (specialised company, law firms...), by providing the file gathering evidence and testimonies, constituted beforehand to support the alert.

2. Alerting a judicial or administrative authority, or the competent professional body, in the absence of a response within a so-called "reasonable" period of time, defined by the company.

3. Make the alert public with the media, if it has not been dealt with within 3 months.

It should be noted that the independent administrative authority, the "Défenseur des Droits", is also there to help and advise whistleblowers.

A major directive, in favour of the protection of whistleblowers, was adopted on 16 April 2019 by the European Parliament.

New rules will thus be transposed throughout Europe by 2021, ensuring :

  • a higher level of protection for the whistleblower
  • protection extended to those who help the whistle-blower...
  • the freedom to choose the most appropriate channel of denunciation...
  • the prohibition of all reprisals against the whistle-blower...
  • the obligation to have access to free and independent legal advice

These rules will therefore gradually supplement the current legislation:

  • the identity of the whistle-blower may not be disclosed except to the judicial authority and with the consent of the person concerned...
  • Criminal liability is excluded if the warning procedure is followed and the warning is "necessary and proportionate to safeguard the interests involved".

Finally, the whistleblower is protected against the actions of his or her employer, particularly in the event of unfair dismissal, which could be annulled.