Conseil d’État: Study on Whistleblowing (2016)

France (2016) Conseil d’État: Study on Whistleblowing

In 2015 the Prime Minister of France requested Conseil d’État to conduct a study on the law and ethical protections afforded whistleblowers in France and to make recommendations for any further changes or amendments.  The letter of request is reproduced below (see Appendix 1 of Study).

Paris, 17 July 2015

The Prime Minister to Mr Jean-Marc Sauvé Vice President of the Conseil d’État

Re: Request for study on ethical whistleblowing.

Ethical whistleblowing has recently been introduced into French law and now features in several pieces of legislation. The Act of 13 November 2007 on combating corruption introduced this concept into Article L.1161-1 of the Labour Code. The Act of 29 December 2011 on improving the safety of medicines and health products was incorporated into the Public Health Code Article L.5312-4-2 applicable to people who have reported or provided evidence, in good faith, of facts relating to the safety of certain products referred to in Article L.5311-1 of the same code. The Act of 16  April 2013 on the independence of expert assessments in respect of health and the environment and protection for whistleblowers includes various provisions on whistleblowers. Among other things, it instituted a National Commission on ethics and whistleblowing in relation to public health and the environment. This defines the rules on whistleblowing in relation to public health and the environment. The Act of 11 October 2013 on transparency in public life includes a section 6 “Protection for whistleblowers” and an Article 25, which deals with people who, in good faith, report or provide evidence of conflicts of interest relating to members of the government, senior local executives or senior public officials. The Act of 6 December 2013 on combating tax fraud and serious economic and financial crime introduced an Article L.1132-3-3 into the Labour Code. This sets out the rules for protection of people who have, in good faith, reported or provided evidence of acts that constitute a crime or offence, which they have come across in the course of their duties. The same Act inserted a similar provision at Article 6 ter A of the Act of 13 July 1983 on the rights and obligations of civil servants. The bill on ethics and the rights and obligations of civil servants also includes provisions on this matter. Finally, during the debate on the Intelligence Bill, Parliament introduced into the Internal Security Code a new Article L.861-3 providing protection for any official in one of the intelligence services bringing facts representing a clear breach of the law to the attention of the National Commission on the Control of Intelligence Techniques. 80 Moreover, drafts of European directives could also soon include provisions in this area. All these pieces of legislation share the fact that they govern the situation of someone who believes they have uncovered serious information and brings it to the attention of someone else. They all protect the persons concerned provided they have acted in good faith. Given the variety of legislative provisions and their recent increase in number, I believe a review of this area should be carried out. A critical analysis is a necessary pre-requisite before introducing any new provisions that may be required, particularly in terms of sector-specific legislation. I would therefore like the Conseil d’État to examine the concept of ethical whistleblowing, its usefulness, its relationship with issuing an early warning to the relevant managers, its limitations and the sanctions applicable in the case of wrongful whistleblowing. Comparisons should be drawn with the existing provisions in the criminal law and criminal procedure, particularly Article 40 of the Code of Criminal Procedure. Your work may include practical proposals to clarify the mechanism and ensure protection for those concerned, but also on how to avoid going to extremes, and protect both individuals and legal entities from wrongful or malicious “warnings”. During your research, you may call on any of the ministerial departments concerned, particularly within the Ministry of Justice, Ministry of the Economy and Finance, Ministry of Social Affairs, Health and Women’s Rights, Ministry of Labour, Employment, Vocational Training and Social Dialogue, and the Ministry of Decentralisation and the Civil Service. I would like this study to be submitted to me by the end of 2015.

Manuel Valls