Whistleblowing: French Style

October 18th, 2018 by Marc Raspanti

What Happened?

On December 9, 2016, the French Parliament enacted Sapin II: “the law on transparency, the fight against corruption and the modernization of economic life.” This marked the first time in French history that a whistleblower was offered protection in an anti-corruption case.

The Background

Before the historical enactment of Sapin II, France was governed by a series of anti-corruption laws and enforcement agencies from the enactment of Sapin I in 1993 to the establishment of the National Financial Prosecutor, the High Authority for Transparency in Public Life, and the Central Bureau of Anti-Corruption and Investigation of Financial Crimes in 2013. However, the French government focused on the transparency of and prevention of bribery in public officials, and neglected to mention anything about the whistleblower. The courts looked to European case law, the French Constitution’s principles of freedom of expression, and the European Convention of Human Rights for guidance on how to treat the whistleblower, but this lead to rampant inconsistency and ineffectiveness.

The Motivation

Without any incentives or guarantees for protection whistleblowers were not coming forward and corruption was perceived to be rampant in French companies and public officials. This led to widespread criticism by the Organization for Economic Co-Operation and Development (OECD) and various other international anti-corruption agencies. This condemnation motivated the French government to enact Sapin II which offered whistleblower protection for the first time in French history.

Who Can Be A Whistleblower Under The French Law?

Sapin II defines a whistleblower as:
a physical person who reveals or reports, in a selfless manner and in good faith, a crime or an offense, a grave and obvious violation of an international commitment lawfully ratified or approved by France, of a unilateral Act of an international organization taken on the ground of said commitment, of the law or regulation, or a grave threat or harm to the general interest, of which this person has acquired personal knowledge.
This requires the whistleblower to be selfless and report the violation in good faith. In order to ensure the whistleblower is motivated by their desire to protect the general public and not their own personal interests, French law prohibits the whistleblower from being monetarily rewarded. This automatically excludes those who are employed to report matters of general interest, such as news reporters and journalists, from receiving whistleblower status. From this definition, the whistleblower does not have to be an employee of the violating company. Aside from selfness and good faith, the only other whistleblower requirements are personal knowledge of the violation, and reasonable grounds to believe the violation did happen.

What Protections Can A Whistleblower Receive?

Since the whistleblower is not offered any financial incentives, the French government standardized a set of protections offered to the whistleblower, for the first time in French anti-corruption law, to entice the whistleblower to come forward. Under Sapin II, procedures to guarantee the confidentiality of the whistleblower must be established. This works to prevent retaliation of any kind from taking place including, but not limited to, firing or imposing hardships on the employment conditions of the whistleblower. If a company does not set up confidentiality protocols or is caught retaliating against a whistleblower, the company will be subject to fines based upon the company’s size. Also, the whistleblower is not held liable for revealing any information protected by law (aside from military secrets, Hippa information, or conversations protected by attorney-client privilege). Even though the whistleblower is not rewarded per se, the whistleblower is guaranteed that they will not be punished for reporting a violating company; a promise that was not offered prior to the enactment of Sapin II.

How To Blow the Whistle In France

In addition to the protections offered, Sapin II also includes reporting requirements for the whistleblower. First, the whistleblower must report the violation to their employer. The report could be made to the whistleblower’s supervisor or to the person designated by the whistleblower’s employer to handle this type of matter. Then, if the employer does not respond in a reasonable time, the whistleblower can report the violation to a judicial authority or administrative authority. Finally, if the authority does not respond in a reasonable time, the whistleblower may go to public with the information in order to have their concerns heard.

The Take Away

Sapin II’s unique take on the whistleblower signifies the French government’s intent to eliminate corruption. By incorporating the term “selflessness” into the definition and forbidding monetary rewards, the French government is working to ensure that all whistleblower claims have merit and are in the best interests of the country. Instead of financial compensation, the whistleblower is rewarded with the guarantee that they will not be punished for the act of whistleblowing itself. While this might not seem like much of an incentive compared to those countries who offer monetary payments like the United States, this is the first time in France’s history that whistleblowers are offered protection of any kind. Only time will tell if the French method is effective in getting whistleblowers to come forward and root out foreign corruption.

 

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