Law No. 2016-1691 of 09 December 2016 (the so-called Sapin II – Law) on transparency, the fight against corruption and the modernisation of economic life created a uniform basis of protection for whistleblowers in France. It served to detect and prevent corruption through increased governance. This law has been supplemented by the Law on Improving the Protection of Whistleblowers of 21/03/2022 to consider the requirements of EU Directive 2019/1937 of 23 October 2019. The so-called Whistleblower Protection Act will come into force before the end of 2022.
Whistleblowers may pass on or report information obtained during their professional activities. These must relate to facts that have occurred or are highly likely to occur in the organisation concerned.
The prerequisites for reporting or passing on a violation are that the whistleblower has acted in good faith and has a legitimate reason to believe so. Furthermore, the report must be necessary. What this means in each individual case and in concrete terms must be clarified.
A special feature is the official status of whistleblower after submission of an application. This so-called whistleblower certificate facilitates access to financial resources and better legal protection for those affected.
In addition, the whistleblower cannot be held liable under civil or criminal law for passing on confidential documents to an external reporting office. The choice between internal or external reporting is up to the whistleblower. Prerequisites are good faith and lawful acquisition of the documents.
The supporters, natural persons (relatives or colleagues) as well as non-profit legal entities (trade unions or associations), who assisted in reporting or passing on the violation must also be protected from reprisals. A very important provision!
A catalogue of over 15 points lists additional retaliatory measures (reprisals) to which whistleblowers must not be subjected. These include intimidation and damage to reputation, especially in social media.
It is particularly noteworthy that the whistleblower can claim an advance payment from the defendant to compensate for the costs of the proceedings on the one hand and his other costs due to his loss of income on the other. The grant will be decided in summary proceedings. How reprisals such as damage to reputation are to be compensated remains open.
In our opinion, France has implemented the EU directive best so far. The other powerful EU member states, which have long and deliberately missed the deadline for implementation, should take France as an example in this respect.
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