The French implementation of the EU Whistleblower Directive takes effect on 1 September 2022 and changes the way whistleblowers are protected.
On 1 September, the French law implementing the European Whistleblower Directive enters into force. The main changes introduced are set out below.
The main changes
The definition of a 'whistleblower' is revised: the whistleblower will now have to act 'without direct financial consideration and in good faith' rather than 'disinterestedly and in good faith' as previously. Good faith remains a condition, but the notion of 'disinterestedness' will be replaced by a stipulation that the whistleblower must not have a financial interest in making a report.
The requirement for 'personal knowledge' of the facts reported is partially abandoned. Instead, under the new rule 'when the information was not obtained in the course of professional activities, the whistleblower must have had personal knowledge of it.'
Protection for whistleblowers will extend to their entourage. The law now protects not only the whistleblower, but also 'facilitators', that is, any individual or entity formed under private non-profit law that helped the whistleblower report and disclose information relating to the facts in question (associations, trade unions, etc.).
The categories of individuals who can make an internal whistleblowing report is extended to include former members of staff (when the information reported was obtained in the course of their employment), job applicants, company managers, shareholders or partners and co-contractors and subcontractors.
The hierarchy of reporting channels has been removed: whistleblowers may now report directly to the competent authorities (specifically the 'Defender of Rights', an independent administrative authority charged with defending individual rights and freedoms), without making a prior internal report.
Protection for whistleblowers is extended to employees who report bullying or sexual harassment.
The law will also require a change to internal whistleblowing rules, because it states that these must 'note the whistleblower protection system provided for in Chapter II of Law 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life' (Labour Code L.1321-2, version in force as from 1 September 2022).
Although the law comes into force on 1 September 2022, some of its provisions are subject to the publication of implementing decrees, which have not yet been published. This concerns, for example:
- the internal procedure for collecting and processing alerts in organisations employing at least 50 employees; and
- the possibility for industrial tribunals (in addition to any other sanction) to oblige the employer to fund the whistleblower's personal training account in the event the employee's employment contract is terminated following a report.
For more information (in French), see:
- 'Transposition of the Whistleblower Directive: what impact for companies?' by Guillaume Bordier and Jean Gautier de la Plaine;
- 'Transposition of the European Whistleblower Directive: two laws have been published in the Official Journal' by Jean Gautier de la Plaine;
- An infographic summarising the law by Mélina Bouroutsis.
Law no. 2022-401 of 21 March 2022, see here.
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.