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Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
First, applicable regulation does not impose any obligation (on companies) to have a whistleblowing system in place. However, companies can implement such a system if they wish.
The implementation of a whistleblowing process in French companies is subject to:
- prior consultation of the work council of the company (if applicable);
- prior notification of the employees on an individual basis; and
- notification to the Data Protection Authority.
Notification to the Data Protection Authority can take the form of a standard notification or simplified notification – which is easy and fast to obtain, provided that the system is subject to specific conditions, such as restrictions on the handling of anonymous reports or limitations on the scope of the whistleblowing system, which should be limited to:
- finance, accounting and banking (for financial institutions);
- the fight against corruption, antitrust law, discrimination and work harassment;
- compliance with health, hygiene and safety in the workplace; and
- protection of the environment.
Second, the existing legal framework does not contemplate a legal status for whistleblowers. However, an employee who uses the whistleblowing system in good faith is offered protection under Article L1132-3-3 of the Labour Code and cannot be terminated or disciplined for providing information about a criminal offence. The employee cannot be punished even if the reported information turns out to be false.
In general, any retaliation against an employee based on his or her reporting will be considered as not having real and serious grounds and will result in the employee claiming damages from the company.
Both the absence of whistleblower status and French cultural specificities can be seen as major obstacles that have caused ethical hotlines to be disregarded by French employees. This is about to change with the draft legislation on corruption (Loi Sapin II) which intends to create a clear legal status for whistleblowers. They would also be eligible for free legal assistance under the foreseen status.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
Because of cultural differences with the common law system in the United Kingdom, the French legal system is not keen on encouraging self-reporting. It is therefore unusual for companies to voluntarily report an offence to the French public prosecutors or regulatory authorities.
The only field where French law has allowed leniency programmes is in antitrust matters. Like in the United States, companies in France can report cartel activity to the French authorities in order to avoid or reduce penalties. Under the French system, the company which is the first to report cartel activity that the authority is not already aware of can benefit from total immunity. Other companies which wish to report illegal activity and cooperate with the French authorities can be offered a fine reduction.
In relation to corruption, there is no such leniency programme in the existing legal framework, nor is one contemplated. This topic has not been part of the discussion for the new legislation on corruption.
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