Two bills are currently being discussed in front of the Parliament to transpose the Directive (EU) 2019/1937 of 23thd October 2019 on whistleblowers. The first one is a proposal for an organic law to strengthen the role of the Defender of Rights and the second one is a proposal for an ordinary law to “improve the protection of whistleblowers“.
On Tuesday 1st February, the agreement reached by the joint committee reinstated most of the provisions adopted in front of National Assembly. On 8th February, the texts should be adopted as they stand.
We can already advise the companies concerned to anticipate the changes to come.
The adoption of these bills will have consequences on whistleblowing procedure that companies with at least 50 employees are required to set up under Article 8 of the Loi Sapin 2.
As a reminder, the definition of a whistleblower in the draft law is as follows: “a natural person who reports or discloses, without direct financial compensation and in good faith, information concerning a crime or misdemeanour, a threat or harm to the general interest, a violation or attempted concealment of a violation of an international commitment duly ratified or approved by France, a unilateral act of an international organisation taken on the basis of such a commitment, or a violation of the law of the European Union, or a violation of law or regulation”.
Although the current transposition will not “revolutionise” the French system, which is mainly the result of Loi Sapin 2, certain changes are nevertheless to be expected for companies subject to the obligation to set up such a system.
Among the new features, three main changes can be anticipated:
1. Broadening of the definition of “whistleblower”: disappearance of the notion of “seriousness”.
Consequence: companies are likely to see an increase of “small” alerts via the whistleblowing system, whereas such alerts should have been made through traditional channels (e.g. referral to staff representatives, labour inspection)
2. The priority given to the internal reporting channel disappears. From now on, the author will be able to choose between an internal alert, via the company’s whistleblowing procedure, or an external channel. He therefore retains the choice of the means of disclosure, whereas the system previously provided that the author of the alert had to use the internal channel first.
As a result, the company is now exposed to the risk that the whistleblower will immediately activate an external channel, creating risks of disclosure of information to third parties and damaging company’s reputation.
3. Article 3 bis of the draft law provides for the inclusion of provisions relating to whistleblowers in the règlement intérieur/company’s internal rules (right to alert, right to withdraw, legal protections, etc.).
Consequences: the règlement intérieur/company’s internal rules may need to be updated
A decree will set out the conditions and requirements relating to the procedure for collecting and processing information under whistleblowing procedure.
In view of these new developments, we recommend that companies set up an adequate and easily accessible system, which inspires the confidence of employees, so that they give preference to internal channels to limit, as far as possible, any risk of damage to company’s reputation.
Is your whistleblowing procedure in place and up to date? Does it comply with the processing of personal data? Have you anticipated new developments in reporting channels?
Our team is at your disposal to discuss this with you: Anne-Cécile Bannier-Mathieu et Mathieu Croix
