« Legal news on whistleblower protection » by Harmonie Seralini

An article from the French newspaper Le Parisien, published on 7 February 2020, reported:“Li Wenliang was hailed as a whistleblower by public opinion and the government after being silenced by the authorities. On December, 30, 2019, the young doctor had reported the information that a virus similar to SARS was spreading in Wuhan.” Li Wenliang died of COVID-19 on February 6, 2020, after treating  affected persons.

Even if all around the world, whistleblowers can suffer from reprisals impacting their lives or those of others, the extent to which these people are legally protected is a “democratic marker”[i]

The European Union (EU) formulated a Directive adopted on 23 October 2019 to protect people who signal an alert about a violation of EU law[ii]. This Directive instructed the 27 Member States to create or adapt a law that respected these dispositions before December 2021. Otherwise, Member States would be punished by the Court of Justice of the EU.

France is one of 10 EU Member States that has a statute on the protection of whistleblowers[iii]: the French law “Sapin II” has been in force since 10 December 2016[iv]. France was a pioneer in Europe in creating a whistleblower statute and a definition of the whistleblower.

Despite this positive development, the press, legal practitioners, academic and legal doctrine request proof of efficacy for any system of legal protection.

Does the French whistleblower law protect employees?

In 2016, the Sapin II Act included a definition of the whistleblower that defines whether he or she is entitled to protection by the law and if so, the areas covered: health, environment and economic. It defines whistleblowers as “individuals (thus excluding legal entities) disclosing or reporting, in good faith and selflessly, a crime, offence, violation of an international commitment, law or regulation infringement, threat or important prejudice to the general interest of which they became aware” (Article 6).

The French statute departs from the dispositions of EU Directive in certain respects. First, there is no need to be in a work relationship with the organization against which the alert is directed in order to benefit from the protection. Second, protection is extended to a person who signals an alert about a “violation of an international commitment (…) or a prejudice to the general interest”, incorporating all business areas. The first French statute protecting whistleblowers concerned only the areas of health and environment[v].Thereby, the Sapin II Act of 2016 allows the extension of whistleblower status not only to an employee who denounces a tax fraud at his firm, but also to a scientist who sounds the alert regarding the toxicity of products that are dangerous to public health.

Has the French protection system for whistleblowers had any effect?

France has certainly been a source of inspiration for the writing of the EU Directive, but this does not guarantee that whistleblowers are effectively protected in the country.

At least three reasons can explain these failures of the Sapin II Act:

  • At the time of the facts, the Sapin II Act was not yet in force[vi]
  • There is no French administrative body that can recognize the requirement for protection of a whistleblower employee prior to litigation
  • The current procedure requires that the employer or supervisor be notified first by the whistleblower. Only if there is a lack of diligence on the part of the hierarchy can the whistleblower notify the outside world: in the first instance, this must be the prosecutor or administrative authority, and a last resort, the press or the public (Article 8 of Sapin II Act). This obligation weakens whistleblower protection because the wrongdoing may be known about within the hierarchy[vii]. In this regard, France was in the minority in the European negotiations and should be permitted to adopt another reporting procedure (without involving the hierarchy) starting from 2022.

The whistleblower role of employee representative bodies

The French government and legislator[viii] have incorporated into the country’s Labour Code a right of alert for Social and Economic Committees (SECs). For an organization with between 11 and 50 employees, the SEC can alert the employer when the rights of individuals are affected, in cases of serious and imminent danger or risk for public health or the environment[ix]. In companies with at least 50 employees, the SEC also has a right of economic and social alert[x].

That means an employee whistleblower can alert the SEC. This avoids reprisals from the employer because they do not bear individual responsibility for the denunciation of the prejudice. However, it is not always possible to utilise the SEC, for these reasons:

  • Companies below the threshold of 11 employees do not have to have an SEC
  • The SEC of companies with less than 50 staff members doesn’t have the economic and social alert right
  • A formal system for the receipt of alerts may not be not implemented in the organization, and anonymity (statutory and without sanctions) is not assured.[xi]

The EU Directive stipulates that an internal reporting procedure must be guaranteed and secured in all private organizations with 50 staff members or more by December 2021. For companies with less than 50 employees, the State, trade unions or staff representatives have until 2023 to set up an internal reporting system in the company.

Does the Sapin II Act comply with the EU Directive 2019/1937 on the protection of persons who reports breaches?

On the scope of application of the law for whistleblowers

The EU Directive defines whistleblower as “a natural person who reports or publicly discloses information on breaches acquired in the context of his or her work-related activities”. The “reporting person” must be in a worker relationship past, present or future with the organization responsible for the violation (Articles 4 and 5). The definition of French law is less restrictive because it allows not only employees, but also any natural person outside of an employment relationship, to denounce a violation. The EU Directive expressly indicates that Member States must not weaken any previous resolutions that they have already integrated, if those resolutions are more favourable for the whistleblower[xii].

On the material scope of application

Regarding the Sapin II Act, fields that are still excluded from the material scope are national defence, solicitor-client privilege, and medical secrecy (Article 6). For these, it will be necessary to create a“specific legislation for people who work in the area of national security.” (Sylvain Waserman)[xiii].

Nonetheless, the Article 2 of the EU Directive details clearly, precisely, and unconditionally the areas in which Member States will not be able to avoid the protection of whistleblowers. In this regard, France will had to protect whistleblower in these excluded fields because “protection appears justified and necessary on the basis of currently available evidence”[xiv] (government procurement, financial service, radiation protection and nuclear safety, etc)[xv]

If Member States neglect to open their legislation on whistleblower protection in these areas until the end of 2021, they risk being sued by an individual[xvi].

Will France succeed in transposing the EU Directive to set up a balance between its legal standing as “a visionary architect” (all areas and definition) and effective whistleblower protection law (authorities’ and organizations’ ability and willingness to act)?

On 4th March 2020 at the Palais Bourbon, the Law Commission carried out its first new statute reading of two propositions of the French report of Ugo Bernalicis: one on the effective protection of whistleblowers[xvii] and the other on the creation of a system of general inspection of whistleblower protection[xviii].

The first proposal for an ordinary law on effective protection was adopted in its entirety, whereas the other draft organic law, about the creation of a general inspection system, was rejected.

The most important points agreed by the Members of Parliament are as follows to improve the existing Sapin II Act:

Toextend to legal persons, in order to enforce the role of SEC (means staff representatives) who have legal standing to act for whistleblower. This transposition will be welcome as an improvement of the EU Directive.

  • The criterion that the whistleblower must be acting “selflessly” will be deleted because is often used via legal channels to silence whistleblower[xix].
  • The choice of the reporting channels will be left to the whistleblower between internal (if that is possible) or external (administrative authorities and then the public), if he is no longer in a work relationship.

However, Members of the French Parliament are still debating certain aspects which not still exist to include on the next protection act: :

  • Which “independent and unique” administrative authority (Article 20 of the EU Directive) will be competent to follow, control, and assist the monitoring of alerts
  • The problem of material assistance[xx] given for the whistleblower’s efforts, including legal aid and psychological support
  • The reasonable time to allow feedback to the employee whistleblower at every step of the reporting procedure (internal, external or public), in order to avoid stress and other psychosocial risks
  • Protection of the whistleblower’s relatives.

The obligation to transpose the EU Directive into French national law[xxi] will make whistleblower protection mandatory from December 2021. Any failure to do so could be considered as an obstacle to freedom of expression, since this fundamental freedom is protected by the European Union[xxii]. A second reading of the new statute took place on 26 March 2020, but the COVID-19 pandemic has reoriented the priorities of the National Assembly. The intention of the EU remains neverthertheless to strengthen and secure democracy.

[i] Resolution no. 2300 (2019) of the Council of Europe, “Improving the protection of whistle-blowers all over Europe”  (paragraph 1).

[ii]  Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law.

[iii]» Sylvain WASERMAN, Report Doc. 14958 of 30 August 2019, Parliamentary Assembly of the Council of Europe, “Improving the protection of whistle-blowers all over Europe”.

[iv] LOI n° 2016-1691 du 9 décembre 2016 relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique dite Loi « SAPIN II »

[v] LOI n° 2013-316 du 16 avril 2013 relative à l’indépendance de l’expertise en matière de santé et d’environnement et à la protection des lanceurs d’alerte

[vi]  See, for example, Dr. Irène Frachon’s warnings about the lethal nature of the drug Mediator.

[vii]  See, for example, Denis Breteau’s loss of his job after revealing the illegal tenders of SNCF in favour of US giant IBM (though he was subsequently reinstated under the Sapin II law).

[viii] Ordonnance n° 2017-1386 du 22 septembre 2017 relative à la nouvelle organisation du dialogue social et économique dans l’entreprise et favorisant l’exercice et la valorisation des responsabilités syndicales ; LOI n° 2018-217 du 29 mars 2018 ratifiant diverses ordonnances prises sur le fondement de la loi n° 2017-1340 du 15 septembre 2017 d’habilitation à prendre par ordonnances les mesures pour le renforcement du dialogue social

[ix]Article L 2312-5 du Code du Travail

[x] Article L. 2312-63 du Code du Travail

[xi] Décret n° 2017-564 du 19 avril 2017 relatif aux procédures de recueil des signalements émis par les lanceurs d’alerte au sein des personnes morales de droit public ou de droit privé ou des administrations de l’Etat

[xii] Paragraph 104 of the Directive (EU) 2019/1937 of 23 October 2019 “The transposition of this Directive should, under no circumstances, provide grounds for reducing the level of protection already granted to reporting per­sons under national law in the areas to which it applies.”

[xiii] Sylvain WASERMAN, Op. cit., Explanatory memorandum by Mr Sylvain Waserman on 30 August 2019, rapporteur, C.4 , “Case study : France”.

[xiv] Paragraph 106 of the Directive (EU) n° 2019/1937 “The material scope of this Directive is based on the identification of areas where the introduction of whistle­blower protection appears justified and necessary on the basis of currently available evidence.”

[xv] Article 2 of the Directive (EU) n° 2019/1937 “government procurement; financial services, products and markets and the prevention of money laundering and terrorist financing; product safety and compliance; transportation safety; environmental protection; radiation protection and nuclear safety; food and feed safety, animal health and welfare; public health; consumer protection; protection of privacy and personal data, and security of networks and information systems”.

[xvi] Judgment of the Court of Justice of the EU (now CJEU), Van Duyn, of 04/12/1974, “Where a provision of a EU Directive is legally clear and unambiguous (…) is directly applicable so as to confer on individuals rights enforce able by the minthe Courts of a Member State.”

[xvii] PROPOSITION DE LOI ORDINAIRE n°2600 enregistrée à la Présidence de l’Assemblée Nationale le 21 janvier 2020 visant à la protection effective des lanceuses et des lanceurs d’alerte

[xviii] PROPOSITION DE LOI ORGANIQUE n°2591 enregistrée à la Présidence de l’Assemblée Nationale le 15 janvier 2020

visant à la création de l’inspection générale de la protection des lanceuses et lanceurs d’alerte

[xix] Avant propos du Rapport d’Ugo Bernalicis visant à la protection effective et à la création de l’inspection générale de la protection des lanceuses et des lanceurs d’alerte, au sujet de la condition « désintéressée » : «cette dernière est beaucoup trop floue, et est souvent invoquée dans les tentatives de « procédures baillons ». Par ailleurs, les obligations de bonne foi et de préservation de l’intérêt général, présentes dans la définition actuelle des lanceurs d’alerte, suffisent à écarter les profils intéressés pour de mauvaises raisons. »

[xx] The French Human Rights Defender can offer guidance but cannot give material assistance because this was judged unconstitutional: Décision 2016-740 DC du Conseil Constitutionnel du 08/12/2016 relative à l’inconstitutionnalité de l’aide financière du Défenseur des Droits

[xxi] Dans sa décision n°2004-496 DC du 10/06/2004 le conseil constitutionnel rappelle que « la transposition en droit interne d’une directive communautaire résulte d’une exigence constitutionnelle à laquelle il ne pourrait être fait obstacle qu’en raison d’une disposition expresse contraire de la Constitution »

[xxii] Article 11 of the Charter of Fundamental Rights adopted by EU in 2000

Posted on 15 août 2020 in News

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