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Whistleblowing with a French Twist
In Part One of this article, we discussed the fact that whistleblowing in France is a rather unwelcome legal obligation. France's total opposition to whistleblowing has softened over time and has been accompanied by a greater understanding and appreciation of its implications. Nevertheless, strong pervasive principles of French law continue to govern this domain. We referred out readers to a recent report on Whistleblowing and Ethical Charters, which was commissioned by the French Minister of State for Employment and Professional Insertion. The Antonmatt'i-Vivien report was aimed at encouraging the analysis and clarification of this grey area of French law. We continue this month with a look at how whistleblowing is implemented in France.
The Obligation to Blow the Whistle
Both French case law and the above-mentioned report underline an essential characteristic of a whistleblowing scheme in France: The whistleblowing procedure can make the disclosure possible, but cannot, under any circumstances, render it obligatory. This remains in direct contrast to the Sarbanes Oxley Act's 406(b), which requires 'the immediate disclosure, by means of the filing of a form, dissemination by the internet or by any other electronic means, by any issuer or any change in or waiver of the code of ethics of the issuer.' This position should be contrasted with that of the CNIL: 'The use of whistleblowing provisions by the personnel cannot be made obligatory.' The French position was also reiterated by the French Minister of State for Employment in a public letter where he claimed, 'Making whistleblowing obligatory is, in reality, transferring the employer's responsibility to ensure the respect of internal rules to the employees. We can also consider that a whistleblowing obligation would be contrary to article L. 120-2 (rights of persons and individual and collective liberties) of the French Labour Code as a constraint which is not proportionate to the objective to be sought.' Clearly, the act of informing the company of malpractice can be encouraged but may not be made obligatory. This remains a fundamental and entrenched position in French law and in direct opposition to the Sarbanes-Oxley Act.
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