By Jean-Philippe Foegle, PhD candidate and researcher on whistleblowing legislation and Country Editor for the EU Whistleblowing Monitor.
On 16 February 2022, the French parliament passed a new law on the protection of whistleblowers. This law, which implements EU Directive on the protection of reporting persons, goes further than the minimal standard set by the Directive to include international best practices, making it the most ambitious transposition in the European Union at the present time.
Background
One of the specificities of the new law resides in the fact that it did not originate from a government initiative. The law was indeed introduced by a member of parliament (Sylvain Waserman) in strong collaboration with civil society (30 organisations gathered around Maison des Lanceurs d’Alerte, a French whistleblowing NGO). Civil society and Mr Waserman started work on whistleblower protection in the context of the Parliamentary Assembly of the Council of Europe’s 2019 Report on the protection of whistleblowers, which encourages member states to go further than the minimum standards set out by the Directive and include international best practice principles for whistleblower protection.
Both civil society and Mr Waserman then worked on drafting provisions of the law and advocated together, trying to convince the government, independent bodies (DDD, CNCDH) and other MPs that transposition should be, not only quick and thorough, but should also go beyond the required provisions of the Directive and meet these international best practices.
On 17 November 2021, the law was unanimously adopted during its first reading in the National Assembly From December 2021 to end of January 2022, the French Senate tried to strike down the more progressive provisions of the law, but finally gave up in the face of the strong united voice and mobilization of civil society
A broad scope of protection for whistleblowers and NGOs
The law, which formally passed on 16 February 2022, is characterized by its particularly broad scope of application in contrast with laws in other countries. Articles 1 and 2 of the Act specify that not only are employees protected, but also any natural person who reveals or reports violations of the law or international commitments, or indeed any threat to the public interest. The definition of whistleblowing in France’s current legal framework under the ‘Sapin 2’ law – already considered the broadest in the world – has been maintained, despite the fact that the Directive only applies to persons who (1) disclose or report information on violations of EU law; and (2) where there is a work-based relationship.
Similarly, while the Directive only requires protection of natural persons who facilitate or assist whistleblowers as well as related third-persons and entities that the whistleblower owns, “the Waserman law” also applies to any NGO that acts as a facilitators. This means that those who assist whistleblowers by offering them support, and in particular legal support, are offered the same level of protection.
Finally, whilst in the majority of other jurisdictions, military personnel are excluded from whistleblower protection, in France they will now be afforded the same level of protection as other civil servants, so long as they do not disclose information that may harm national security.
Robust protection standards
The new law also sets out mechanisms of protection that go far beyond the Directive’s minimum standards.
1. Anti-SLAPP provision:
Firstly, the new law provides that whistleblowers who are victims of SLAPPs – or ‘Strategic Litigation Against Public Participation’ – or retaliation in an employment context, such as dismissal, layoff etc. may be granted financial assistance. Article 5 of the law states that, where a whistleblower can make a prima facia case that they have been victimized, or subjected to a SLAPP suit, they make an application to a judge, who has the power to force the organization to provide substantial funding to cover legal fees and, where relevant, funding to cover their living expenses where their financial situation has deteriorated. In addition to that, regulators are required to provide financial and psychological assistance. The judge can also require the organization to provide the whistleblower up to 5000 euros to help them pay their vocational training fees.
2. Immunities from criminal liability:
Secondly, whilst the Directive provides that whistleblowers shall not incur liability in respect of the acquisition of, or access to, the information which is reported or publicly disclosed, provided that such acquisition or access did not constitute a self-standing criminal offence the new French law goes further. It provides wider immunity for whistleblowers who cannot be sentenced for any offenses committed in order to gather proof that a breach or harm to the public interest has occurred, as long as they became aware of it “in a lawful manner.“
To use the example provided by Mr Waserman, “no one has the right to put microphones in the office of his boss to find out if there is something to be found and blow the whistle, but” if a whistleblower is shown a “report proving that a factory discharges mercury into a river, he/she has the right to steal it to prove the facts of which he/she have lawful knowledge.”
Sanctions and provision of assistance
The Waserman law strengthens existing sanctions against those who retaliate against whistleblowers, whilst reinforcing the French ombudsman’s ability to assist whistleblowers.
Whilst the Directive provides for effective, proportionate and dissuasive penalties applicable to natural or legal persons retaliating against the whistleblower – without specifying which ones – the new law imposes criminal sanctions on those who retaliate: A sentence of three years of imprisonment and a fine of 45,000 euros can be ordered against those who victimize or discriminate against a whistleblower. In addition to this, judges may impose 60,000 euro fines on companies who taking a SLAPP action against a whistleblower. Whistleblowers can also use class actions against their employer when they are discriminated or victimized.
Finally, the French Ombudsman – ‘Défenseur des Droits’ – has had its powers to assist whistleblowers strengthened. It can make investigations, file third-party interventions and make recommendations. It can also certify that the whistleblower meets the criteria to be protected, in order to help him/her access the various support measures and services now available.