Whistleblowers legal protection being widely fragmented from one Member State to another, the European Union adopted on October 23, 2019 a new Directive (the “Directive”)1 offering a European level protection to persons who report breaches of EU law.
France which needs to transpose this Directive within two years, did not wait long to acknowledge the changes introduced by the Directive. Indeed, a first Bill on the adaptation of French law to European provisions has already been presented to the French Parliament and is currently in the hands of the Commission for Constitutional Laws, Legislation and General Administration of the Republic of France2.
However, this text is not final, and amendments are likely to be made in the future. In fact, in a press release dated June 4, 2020, the French Defender of Rights (“Défenseur des Droits”)3 has called for an “ambitious transposal” of the Directive4.
I. A possible extension of the French scope of reporting
While French law on whistleblowing mentions report of “<em<=”” em=””>”, the Directive covers all violations related to Union acts in ten areas (i.e. public procurement, environmental protection, public health, consumer protection, protection of privacy and personal data5) and breaches affecting the financial interests of the Union. Each Member State will be able to extend the material scope defined by the Directive6 giving leeway to France to extend the scope of areas or acts that can be reported.</em
In that vein, the Defender of Rights suggests that the French government takes the opportunity of the transposition to introduce a specific whistleblowing mechanism for national security and defence issues7.
In addition, while French law limits whistleblowers protection to workers, the Directive extends the scope of the protection to a wider public. Article 4 of the Directive indeed provides that whistleblowers can be any persons who work or worked in the public or private sector and who have obtained information on violations in a professional context, whether they are employees, self-employed workers, shareholders or members of management or management bodies, monitoring of companies, volunteers or trainees8.
The Directive also grants protection to facilitators and third parties who are close to the authors of reports and who incur, by extension, risks of reprisals9. The Defender of Rights press release has called for a clarification of the role legal entities (such as NGOs and unions) may play in the whistleblowing procedure.
II. A possible reinforcement of the French whistleblowers protection framework
Unlike French law, the Directive does not require the whistleblower to act in a disinterested manner10. Hence, in order to benefit from the protective regime, the author of the report must have had “reasonable grounds to believe that the information reported was true at the time of the report” and be sure that, “this information fell within the scope of the Directive”11. Those conditions tend to ensure that the whistleblower makes a “responsible denunciation, driven by the sincere intention to preserve the public interest12” and aims to avoid “malicious, fanciful or abusive” reports. The European system also provides protection for persons in good faith who report an inaccurate violation13.
The Directive provides for internal and external reporting channels and encourages the primary use of internal channels “where the breach can be addressed effectively internally and where the reporting person considers that there is no risk of retaliation14.” The implementation of such internal whistleblowing systems is mandatory for companies over fifty employees and for cities of more than ten thousands inhabitants15.The Directive does not, however, prioritize internal reporting channels16.
According to the Defender of Rights, the transposal of the Directive should enable the consolidation of French reporting channels by strengthening the monitoring of the effective implementation of procedures for collecting alerts as well as designating external competent bodies to handle the processing of reports.
Whistleblowers’ anonymity must be guaranteed17. The principle arises from the duty of confidentiality binding entities and authorities collecting the alerts. Hence, the whistleblower’s identity or the information that could make it possible to identify her or him cannot, except within strictly limited exceptions, be disclosed without her or his consent. The Directive leaves the choice to the Member States to accept or not anonymous alerts18. This is not a major change in France since article 9 of the law Sapin II already requires “strict confidentiality on the identity of the reporting parties19”. The Directive requires that whistleblower’s protection measures explicitly prohibit reprisals and threats. Supporting measures to assist those who may be persecuted20, such as information and advice on remedies or even legal assistance, must also be implemented21. Each Member State is free to provide for financial assistance and psychological support measures for whistleblowers who face legal action22. Such provision was similarly discussed before the adoption of the law Sapin II, but was finally rejected by the Constitutional Council (Conseil Constitutionnel)23.
The European Directive on the protection of persons who report breaches of Union law clearly shows that the Sapin II law whistleblower protective framework is well advanced. The transposition is still an opportunity to go further by extending the scope of areas and acts that may be reported and by reinforcing the protective measures for whistleblowers.