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Whistleblowing and self-reporting
Are whistle-blowers protected in your jurisdiction?
The Sapin II Law has created a judicial status for whistleblowers and sets forth protective measures. A whistleblower is an individual who is deemed to be acting in a selfless manner, which means not routinely alerting or reporting wrongdoings. The whistleblower must report in good faith (ie, have sufficient grounds to believe that the facts and risks reported are accurate). He or she must also have had personal knowledge of the alleged facts.
A number of measures have been introduced to protect the whistleblower:
from criminal prosecution after denouncing information covered by a secret; and
against possible repercussions by his or her employer.
However, the protective status of the whistleblower does not preclude liability in the event of misreporting. Further, the benefit of this protection is subject to compliance with the whistleblowing process (Article 10(I)(1) of the Sapin II Law).
Such whistleblowing process consists of three levels and requires the organising internal procedures for the collection of alerts:
Reports must be made to the immediate or indirect supervisor, the employer or a referee designated by the employer.
If no action is taken within a reasonable period to check the admissibility of the report, the whistleblower may refer the matter to the judicial or administrative authority or professional orders.
If the report is not processed by one of the three bodies within three months, the whistleblower may disclose the facts to the public.
Only in the event of serious and imminent danger or a risk of irreversible damage can the whistleblower refer directly to judicial or administrative authorities or professional orders.
The Sapin II Law compels legal entities that are governed by private or public law and that have at least 50 employees to put in place such a whistleblowing process. The details of this obligation were specified by Decree 2017-564 on April 19 2017, which became effective on January 1 2018 ( by virtue of Article 8 of the decree).
Companies must determine the best legal instrument to meet these obligations and implement them in accordance with the legislation (Article 1 of the decree). Companies must:
inform the whistleblower as soon as possible following receipt of the report of the reasonable and foreseeable time necessary for the process and how he or she will be informed of its consequences.
ensure strict confidentiality of the whistleblower; and
destroy the elements of the file which could allow the identification of the whistleblower or persons subject to the reporting if there is no action or at the end of two months from the closure of all admissibility or verification procedures (Article 5 II of the decree).
The Sapin II Law also punishes obstructions to whistleblowing. Thus, anyone who obstructs reporting by any means will be punished by up to one year of imprisonment and a fine of up to €15,000.
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, which means that self-reporting is still not an option that would be legally encouraged. In that respect, it must be clear that the so-called ‘public interest arguments’ are not leniency programmes.
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