European Union: The EC New Alert Mechanism To Detect Cartels: A Teaser Before A European General Framework For Whistleblowing

Last Updated: 7 June 2017
Article by Noëlle Lenoir, Eric David, Erica D. Klein, Alan R. Friedman and Samuel Guetta

Most Popular Article in France, June 2017

Whistleblowing has been part of the U.S. legal tradition, if not since the resolution passed by the Continental Congress in 1778, at least since the adoption of the 1863 False Claims Act. With regard to the disclosure of antitrust violations, the well-known 2013 Criminal Antitrust Anti-Retaliation Act reinforced whistleblower protections for employees who report information to federal prosecutors. 

Whistleblowing is a much more recent development in the European Union (EU), but an increasing number of member states are adopting relevant laws, and the practice has begun to be addressed by the EU legislature.

Trade secrets and immunity of whistleblowers

The first-ever EU legislation to mention whistleblowers with a view toward protecting them against retaliatory measures is the EU Trade Secrets Directive of June 8, 2016, which ensures the protection of undisclosed know-how and business information against their unlawful acquisition, use and disclosure. Against the current context of cyberattack threats, this Directive was approved by a rather large majority of 503 of the 766 members of the EU Parliament, and was subsequently unanimously approved by the Council.

In the aftermath of Snowden's recent revelations, the notorious Luxleaks scandal and the publication of the Panama Papers, it comes as no surprise that the issue of whistleblowing was a major point of controversy during the parliamentary debate. This debate resulted in the adoption of Article 5 b of the Directive, which obliges member states to ensure that trade secrets' protective measures are dismissed where the alleged acquisition, use or disclosure of a trade secret was carried out by a whistleblower "for revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest."

This provision, being part of a directive (versus a regulation directly applicable in all member states), requires national implementation and provides member states the discretion to define the legal framework applicable to whistleblowing.

The recent French anti-corruption law and whistleblowing

The legal framework for addressing whistleblowing in France is set forth under the December 2016 Act on Transparency, and Fight against Corruption (SAPIN II Act), and the Decree implementing this law published on April 20, 2017. This legislation greatly enlarges the scope of whistleblowing which may relate to all kind of misdemeanors, including anti-competitive practices. It also sets up a general status for whistleblowers. According to this new harmonized status, a whistleblower is exempt from the application of sanctions or from retaliation measures for having duly disclosed confidential information on the functioning of his/her company or on the conduct of employees or managers. In case of a dispute between a whistleblower and his/her company on the application of the new regime of whistleblowing, it is up to the company to prove that the sanction inflicted or any other measure taken against the employee concerned is justified based on concrete elements.

However, the following criteria must be met to allow the whistleblower to benefit from this protective status:

  • The whistleblower can only report on facts that he or she knows personally, without any intermediary.     
  • The whistleblower must be "disinterested." This implies on the one hand that he or she must not act in pursuit of financial incentives, and on the other hand that he or she cannot have a regular activity of disclosure of misconduct or alert.
  • The whistleblower must act in a "bona fide manner."

With regard to the procedure of whistleblowing, the SAPIN II Act integrates into French law the European Court of Human Rights (ECHR) case law's established principles. In line with the 2008 case Guja v. Moldova, whistleblowers must respect a three-step scale: the SAPIN II Act states that (i) the alert reporting "shall be brought to the attention of the direct or indirect supervisor, or to the employer or to a contact designated by him"; (ii) in the event of inertia by the employer, the whistleblower may petition the authorities, e.g., administrative authorities (labor inspectors, for instance), courts or even professional bodies; and (iii) as a last resort, in the event the authorities abstain from processing the case beyond a period of three months, the whistleblower may make his or her report public.

EU new antitrust hotline and the necessity to reinforce companies' compliance programs

The fundamental principles derived from the ECHR's case law are usually applied in the different EU member states where whistleblowing is becoming a common practice in the public and private sectors. In response, the EU Commission (EC) is currently contemplating the drafting of a directive to harmonize whistleblowing national legal frameworks.

In parallel, in her field of competence, Mrs. Margrethe Vestager, the competition EU commissioner, decided to launch, on March 16, 2017, the first-ever EU whistleblowing mechanism as a tool to alert about cartels and other antitrust violations (

The specificity of this mechanism is that it is totally anonymous. To protect anonymity, the system is encrypted and managed by an external service provider.

Anonymous mechanisms dedicated to antitrust alerts have been established in a few member states, such as Germany since 2012, Denmark and Romania. But other countries are quite reluctant to accept such anonymity.

This is the case in the U.K. In principle, anonymous whistleblowers who report antitrust violations to the Competition and Markets Authority are not accepted. However, whistleblowers are assured that their identity is not disclosed to third parties. In France, there is no alert system specifically dedicated to the disclosure of antitrust violations, but the SAPIN II whistleblowing system based on the recommendations of the National Data Protection Authority requires whistleblowers to reveal their identity, which, as in the U.K., may not be revealed to anyone else; the  law "ensures the strict confidentiality of the authors of the alert" but also of "the persons targeted by it and the information gathered by all the recipients of the alert." This provision is based on the idea that identification of whistleblowers is a necessary safeguard against malicious accusations. In addition, one may wonder whether a judge could legally authorize visits and seizures in the course of an investigation solely based on anonymous denunciations. In this event, such an order would certainly be challengeable.

Apart from the fact that EU member states have different views concerning anonymity versus identification of whistleblowers, the new EC alert tool created to facilitate the collection of evidence of antitrust practices raises serious concerns.

Indeed, this system risks jeopardizing leniency programs. Once the EC is alerted about a cartel by a whistleblower, how will it be possible for companies which provide proofs of the practices to the EC to benefit from immunity? The EC should urgently clarify the issue to ensure legal certainty.

In any case, to avoid suffering detrimental consequences of such a mechanism, which would make it very easy for competitors or former employees, for instance, to report real or alleged antitrust violations, companies must consider as a priority putting in place efficient internal compliance programs, including hotlines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.