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Whistleblowers: yet another reform in the pipeline

Monday 25 April 2022

Emmanuel Moyne
Bougartchev Moyne Associés AARPI, Paris
emoyne@bougartchev-moyne.com

Geoffroy Goubin
Bougartchev Moyne Associés AARPI, Paris
ggoubin@bougartchev-moyne.com

Nathan Morin
Bougartchev Moyne Associés AARPI, Paris
nmorin@bougartchev-moyne.com

Introduction

The objective of the deputies backing bill No 4398, registered at the National Assembly on 21 July 2021, was ‘to strengthen the protection of whistleblowers’. The bill was approved by the Senate on 16 February 2022 and will be examined by the French Constitutional Court in the very near future.

However commendable the aim, this approach merely led to additional refinements to existing measures. Furthermore, and in spite of the drafters’ objective to clarify existing law, most of the refinements are somewhat ambiguous. We may fear that it will give rise to difficulties of interpretation by labour or criminal courts, which would have the jurisdiction to rule on the merits of a whistleblower’s warning.

Context

The adoption of Law No 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as ‘Sapin II’, was a milestone in the protection of whistleblowers. The French legislature introduced a true protective status, unifying and harmonising the various regimes which had previously existed.

The subject is back in the spotlight because of: (1) the transposition into French law of Directive (EU) 2019/1937 of 25 September 2019 on the protection of persons who report violations of EU law; and (2) the assessment made by some observers that whistleblowers are insufficiently protected.

It should be emphasised that several specific cases, such as the Mediator, Facebook, Luxembourg leaks or Swiss leaks cases, were the primary reason for such finding. These cases are not the norm, however, so the approach taken by legislators may be slightly biased. 

The protective measures in question

The measures to strengthen whistleblowers’ protection further include:

  • the civil non-liability of whistleblowers who may have considered their whistleblowing necessary to protect the interests at stake;
  • the criminal non-liability of whistleblowers who may have fraudulently obtained confidential information to feed their whistleblowing;
  • the possibility for the courts to allocate a provision for the foreseeable costs and expenses of the proceeding to a whistleblower who is a party to a proceeding; and
  • the introduction of a civil fine, which may be pronounced by the courts against persons acting ‘in an abusive or dilatory manner’ against a whistleblower, the amount of which may not exceed €60,000.

There is no doubt that these measures will ensure better protection for whistleblowers. Nevertheless, there are a few caveats as to the relevance of deeming a whistleblower who commits a criminal offence under the guise of their right or duty to blow the whistle criminally irresponsible.

Although it may be in line with the prevailing trend in recent French case law, which tends not to punish evidence obtained illegally, this measure is nonetheless an incitement to data theft, or is at least likely to be used by unscrupulous employees who will only have to take refuge behind a so-called ‘whistleblower’s right’ to justify offences they may have committed.

In its original version, the draft law also provided for creating an ‘offence of retaliation’, punishing retaliatory measures taken against a whistleblower with three years of imprisonment and a €45,000 fine.

It was difficult to fathom how it would work together with the offence of hindering a whistleblower, provided for by Article 13 I of the Sapin II law, for which the penalties are a year’s imprisonment (as opposed to three years) and a fine of €15,000 (rather than €45,000).

How does one distinguish between ‘obstructing, in any way whatsoever, the transmission of a report’ and ‘taking reprisals [...] against a person because of his or her status as a whistleblower’? In all likelihood, reprisals may be set up for the sole purpose of preventing whistleblowing.

Maintaining the text as it stands would have contravened the principle of equality before the criminal law. This principle, as interpreted by the French Constitutional Court, means in particular that ‘the criminal law cannot, for the same offence, impose penalties of a different nature, unless it is justified by a difference of situation directly related to the purpose of the law’, according to Cons Constit, decision No 2013-328 QPC of 28 June 2013.

Fortunately, this provision was removed from the bill.

The clarifications in question

For the record, the Sapin II law defines a whistleblower as ‘a natural person who discloses or reports, in a disinterested manner and in good faith, a crime or misdemeanour, a serious and clear violation of an international commitment [...]’.

The drafters of the law have tried to clarify the concept of disinterestedness, somewhat ambiguous. In the text as adopted by the French parliament, the whistleblower becomes the one who would have acted ‘without direct financial consideration and in good faith’. This definition is certainly more precise but not much clearer.

The fact that the legislator intends to restrict the notion of disinterestedness to its exclusively pecuniary dimension is a choice that is subject to debate, not least because the whistleblower who intervenes with the sole intention of harming others, without any hope of financial repercussions, is no less malicious and should therefore not benefit from such a broad protection.

In terms of intelligibility, the addition of the adjective ‘direct’ is much more problematic. Where should the cursor be placed? Does a warning aimed at ousting a competitor from a market in order to obtain the said market fall within the scope of the protection? Should we understand that a whistleblower who intervenes to ensure that one of their relatives is unduly enriched would benefit from the same protection as one who intervenes solely on behalf of the general interest?

This new definition, although likely to increase the number of cases in which the whistleblower will benefit from protection, will certainly give rise to difficulties of interpretation for the courts.

This law also intends to clarify ‘the functioning of the internal and external channels of reporting as well as the choice and the modalities of having recourse to the external channel and to public disclosure for the author of the report’.

In this respect, we commend the initiative to introduce a three-to-six month timeline to process alerts. Nevertheless, and conversely, employment law imposes a two-month deadline for an employer to implement sanctions against an offending employee, a time limit which runs from the day the employer becomes aware of the litigious facts.

However, we regret the clarifications made regarding the possibility of a whistleblower bypassing the internal channel.

First, a warning can be made public in the two following relevant hypotheses: the time limit to handle information is not complied with or there is a ‘serious and imminent danger’. The law also provides this possibility when the internal channel: (1) ‘puts the author at risk of reprisals’, whereas the risk of reprisals is the very reason for the protection mechanism and, in any event, systematic, at least in theory; or (2) ‘would not effectively address the subject matter of the disclosure’, which leaves the reader wondering ‘due to the particular circumstances of the case’ – one could not be clearer – ‘particularly if evidence can be concealed or destroyed’ which, in theory, will be verified in almost all cases ‘or if the author of the alert has serious reasons to believe that the authority may be in conflict of interest, in collusion with the author of the facts or involved in these facts’ – which is much more commendable but will pose problems since the notion of conflict of interest is a protean concept difficult to address.

It is to be feared that the internal channel will be skirted in many cases. We may come to regret the teachings of Portalis, according to whom ‘the office of the law is to fix by broad views the general maxims of the law, to establish fruitful principles accordingly, and not to descend into the details of the questions that may arise on each subject’.

This is all the more accurate when we consider the innumerable sources governing the matter. These are: the Sapin II law, law No 2017-399 of 27 March 2017 relating to the duty of care of parent companies and ordering companies, application decrees; the Data Processing and Freedom Law of 6 January 1978; RGPD, CNIL deliberation No 2019-139 of 18 July 2019, adopting a reference framework relating to the processing of personal data intended for the implementation of a professional alert system; labour law; recommendations of the French Anti-Corruption Agency from 12 January 2021, and so on.

Extending the protection scheme to ‘facilitators’

Finally, we fear the introduction of the notion of ‘facilitators’ will lead to various abuses. As the law would not require going through the internal channel first, facilitators such as trade unions, associations and other non-governmental organisations, to whom whistleblowers may turn, would now benefit from the same protection as whistleblowers, including the aforementioned criminal irresponsibility.

Some will argue that these facilitators are often the source of abusive procedures against companies, so much so that the latter would be right to fear abuses by malicious employees who m turn to these self-proclaimed benefactors.

The truth cannot be far off. But let us be reassured, the legislator will work in the name of transparency.