Law of 21 March 2022 No. 2022-401 “On Improving the Protection of Whistleblowers” (Loi No.2022-401 du 21 mars 2022 visant à améliorer la protection des lanceurs d'alerte), hereinafter referred to as Law No. 2022-401, which enters into force on 1 September 2022, and Organic Law of 21 March 2022 No. 2022-400 “On Enhancing the Role of the Human Rights Defender in the Area of Whistleblowing” (Loi organique No.2022-400 du 21 mars 2022 visant à renforcer le rôle du Défenseur des droits en matière de signalement d'alerte) are aimed at implementing Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law and make the following amendments to Law of 9 December 2016 No. 2016-1691 “On Transparency, Fight against Corruption and Modernisation of Economic Life” (Loi n° 2016-1691 du 9 décembre 2016 relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique), hereinafter referred to as Law No. 2016-1691, the Criminal Code (Code pénal), the General Civil Service Code (Code général de la fonction publique), the Labour Code (Code du travail) and a number of other documents:
1. Reporting channels
One of the main novelties is a partial change of priority of reporting channels.
Previously, Law No. 2016-1691 provided for a three-level reporting procedure: first, a whistleblower had to report internally, then, if no feedback was provided, he/she could use external channels, reporting to competent authorities, and, if both attempts were unsuccessful he/she was entitled to publicly disclose relevant information under certain circumstances.
From now on, a whistleblower can report immediately through internal and external channels established in the competent authorities, including judicial institutions, bodies and agencies of the European Union authorised to gather information about violations of the Directive on the protection of persons who report breaches of Union law or report a violation to the Human Rights Defender (Défenseur des droits), whose functions will include:
- receipt and processing of reports, investigation of relevant violations, corrective action and bringing of relevant information to the attention of whistleblowers;
- forwarding reports to the competent authorities if the Human Rights Defender or other body that receives the tip does not have the necessary powers for investigation and corrective action;
- assignment of the status of whistleblowers to reporting persons and assessment of their compliance with the conditions allowing them to be entitled to protection, including the protection of persons associated with them, and issuance of relevant opinions within six months from the date of their application;
- informing whistleblowers and providing them with advice on reporting;
- preparation of an annual report on the tips processed based on the information submitted by the bodies authorised to receive and process reports, investigate respective violations, undertake corrective action and bring relevant information to the attention of whistleblowers, and release of a public report on the functioning of the whistleblowers protection system every two years.
2. Status of whistleblower
Also, Law No. 2022-401 amended the definition of a “reporting person”: now a whistleblower is a natural person who, without receiving directly a financial reward, discloses in good faith information about a crime or an offence provided for by the domestic law or legal act of the European Union, whose commission damages public interest, the threat of its commission or an attempt to conceal it, as well as a violation of France’s international obligations, including the provisions of unilateral acts of international organisations that served as the basis for those obligations, or an attempt to conceal such violation.
Additionally, it is clarified that a whistleblower does not have to personally know about the violation he/she discloses: under the new amendments, he/she is entitled to report a violation that a different person informed him/her about in the framework of his/her professional activities.
3. Protection of whistleblowers
As per the amendments, besides the whistleblower, the following persons are entitled to protection:
- a natural person or a not-for-profit organisation, whose activities are regulated by private law, who provide assistance to the whistleblower in his/her reporting a violation;
- persons associated with the whistleblower who can be subject to retaliation measures too, for instance, colleagues or relatives;
- organisations owned by the whistleblower or controlled by him/her, where he/she undertakes professional activities or which he/she is linked to by professional relations in some other way.
The retaliation measures which whistleblowers and other persons should be protected from are supplemented by:
- inclusion in a “black list” based on an industry-wide agreement, which can lead to the impossibility of employment of the whistleblower in the sector in the future;
- reputational damage, including in social networks;
- referral to psychiatric or medical examination.
The list of measures for protecting whistleblowers is extended too and includes, among other things:
- exemption of whistleblowers from criminal liability for disclosing information about documents containing confidential information if they had legal access to it, as well as from civil liability for the damage inflicted on the body (organisation) due to the disclosure made;
- whistleblowers whose financial situation considerably worsens due to reporting of a violation are entitled to the coverage of legal costs that they can bear throughout court proceedings on the matters of retaliation of a body (organisation) against them;
- in the case of anonymous reporting or a public disclosure: possibility to gain the status of whistleblower for the persons whose identity is revealed.
Additionally, Law No. 2022-401 changes liability measures for the abuse of functions in the course of court proceedings with respect to whistleblowers or for the delay of the latter: the fine for this crime is increased from €30,000 to €60,000 with the decision to prosecute being published in the Official Journal of the French Republic (Journal officiel de la République française) and in another (one or several) printed or electronic edition.