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European Directive on Whistleblowers
Since April 2019, the European Union has adopted a new directive governing the activity and role of the whistleblower, an actor participating in transparency and ethics in business and in the protection of the general interest.
The directive defines in particular the areas in which whistleblowers can contribute to defending the general interest, such as public procurement, public health, security, consumer protection, protection of personal data.
The directive also establishes the obligation for any company with more than 50 employees to set up a system for collecting and processing reports made by employees.
Finally, the European directive establishes special legal protection for whistleblowers, protecting them from any form of retaliation, such as disciplinary sanctions, dismissal, demotion, intimidation).
Member countries have a period of 2 years to transpose and implement this directive into their local legislation.
SAPIN 2 law
The Sapin 2 law of December 9, 2016 relating to ethics, transparency in business life, transparency, the fight against corruption and the modernization of economic life, supplemented by the Decree of April 19, 2017 defining the implementation methods:
- created a legal framework applicable to whistleblowers; and establishes the obligation to set up a general whistleblower and report collection system.
Waserman Law 2022
The law strengthens the protection of whistleblowers, enshrined in the so-called “Sapin 2” law of 2016. It transposes a European directive of October 23, 2019 and goes even further. Several cases have demonstrated the difficult battle of whistleblowers: Mediator, Facebook, Luxembourg Leaks or Swiss Leaks in tax matters…
Who is affected by the ethics alert system?
Companies with more than 50 employees.
Local authorities and public legal entities employing at least 50 agents will be “required to establish an internal procedure for collecting and processing reports, after consultation with social dialogue bodies”.
What types of alerts can be reported?
Reports may concern the following topics:
- a crime (e.g. aggravated theft, rape, torture, attack, forgery of public documents, etc.);
- an offense (tax evasion, corruption, abuse of corporate property, breach of trust, illegal taking of interests, influence peddling, illegal use of public funds);
- moral or sexual harassment, discrimination, an attack on fundamental human rights;
- a serious and manifest violation of the law or regulation (e.g. excess of power, non-compliance with health or safety rules, etc.);
- a serious and manifest violation of an international commitment such as the UN conventions on human rights, the Treaties on the Non-Proliferation of Nuclear Weapons, the Basel Conventions on Wastes and Dangerous Chemicals, Rotterdam and Stockholm, the ILO, WTO or Council of Europe Conventions, etc.);
- a serious threat or harm to the general interest (e.g. attacks on public health, public security or the environment, aggressive tax optimization, serious management error, or even concealment of evidence relating to all protected reports, etc.) ).
What is a Whistleblower?
The right to alert is an option offered to any employee to freely exercise their responsibility and decide in full conscience whether or not to report or reveal a serious attack on the general interest of which they are personally aware.
The whistleblower must meet three prerequisites:
- Act selflessly.
- Be in good faith (have the reasonable belief that the facts are true at the time of the statement).
- And having personal knowledge of the facts (being the source of the information).
The whistleblower having complied with the prerequisites and the recommended graduated procedure, therefore benefits from:
- criminal immunity;
- the guarantee of confidentiality of his identity;
- protection against disciplinary sanctions and dismissal.
The law provides that from now on the whistleblower will be able to choose between internal reporting and external reporting to the competent authority, the Defender of Rights, the courts or a European body.
There public disclosure will not always be possible that in certain situations. After agreement reached between parliamentarians, the public alert may intervene in the event of:
- absence of treatment following an external report within a certain period;
- or risk of reprisals or if the report has no chance of success;
- or “serious and imminent danger” or, for information obtained in a professional context in the event of “imminent or obvious danger to the general interest”.