Law 2016-1691 of December 9th, 2016, known as the "Sapin Law" created a status for whistleblowers and thus offered them a protective regime.
According to the Defender's annual report (https://www.defenseurdesdroits.fr/en/annual-reports/2019/03/annual-report-2018), the Sapin law "has allowed the emergence of a awareness of the role that everyone can play in the development of reports and in the moralization of public life ".
1) The legal status of the whistleblower (lanceur d’alerte) and its framework of protections created by Sapin II law
1.1) The definition of the whistleblower according to Sapin II law
Article 6 of the Sapin II law defines the whistleblower as follows: "A whistleblower is a natural person who reveals or reports, disinterestedly and in good faith, a crime or offense, a serious and manifest violation of an international commitment duly ratified or approved by France, a unilateral act of an international organization taken on the basis of such an undertaking, law or regulation, or a serious threat or harm to the public interest, of which it has been personally aware. "
1.2) The general device for protecting whistleblowers
1.2.1) Certain secrets are excluded from the alert regime
It is important to note that the law excludes from the scope of the operative part "Facts, information or documents, whatever their form or medium, covered by the secrecy of national defense, medical confidentiality or the secrecy of relations between a lawyer and his client are excluded from the alert regime defined by this chapter. "(Article 6).
1.2.2) The reporting procedure to be followed
The reporting procedure to be complied with is described in article 8 of the Sapin 2 law.
The procedure must be carried out:
- To the hierarchical superior, direct or indirect, of the employer or a referent designated by him;
- In some cases, by outside and casual collaborators.
1.2.3) What protection?
Whistleblowers are protected against professional retaliation and thus benefit from a reduction in the burden of proof.
They also benefit from the regime of criminal irresponsibility in the event that the report resulted in the violation of a protected secret.
In addition, their identity is kept strictly confidential: non-compliance with the obligation of confidentiality of their identity is penalized, as is the fact of hindering the reporting, in any way whatsoever.
Moreover, in case of abusive procedure for defamation, the civil fine is doubled.
To read all the article, please click on the link below
- Guide - orientation and protection of whistleblowers, https://defenseurdesdroits.fr/en/guides/guide-orientation-et-protection-des-lanceurs-dalerte
- Annual report of the defender of rights (https://www.defenseurdesdroits.fr/fr/rapports-annuels/2019/03/repport-annuel-dactivite-2018
- LAW n ° 2016-1691 of December 9th, 2016 relating to the transparency, the fight against the corruption and the modernization of the economic life
- Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee - Strengthening the protection of whistle-blowers at EU level - 23.4.2018 COM (2018) (http: //ec.europa .eu / transparency / regdoc / rep / 1/2018 / FR / COM-2018-214-F1-EN-MAIN-PART-1.PDF)
Frédéric CHHUM, avocat and Member of the Council of the Bar Association of Paris (member du conseil de l’ordre des avocats de Paris)
CHHUM AVOCATS (Paris, Nantes, Lille)
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