French Whistleblowing Legislation: LOI n° 2022-401

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In an era of increased corporate scrutiny and accountability, France has taken a significant step forward with the enactment of a new law, LOI n° 2022-401.

This new French whistleblowing legislation, aimed at improving the protection of whistleblowers, builds upon its predecessor, the SAPIN II law, and introduces several substantial changes that are particularly relevant for professional services firms.

The EU Whistleblowing Directive: A Catalyst for Change

The new law is a response to the EU Whistleblowing Directive which aimed to implement universal protections for whistleblowers across the bloc. The Directive required all private and public sector employers with 250 employees or more to implement a whistleblowing system by 17 December, 2021. Smaller organisations with between 50 and 249 employees were given an extra year to prepare for the measures.

Key Differences Between LOI n° 2022-401 and SAPIN II whistleblowing legislation

The new French whistleblowing legislation, LOI n° 2022-401, builds upon its predecessor, the SAPIN II law, and introduces several substantial changes. Here are the key differences between the two:

Definition of Whistleblower

Under SAPIN II, whistleblowers were required to have “personally” known about the facts they were reporting. The new French whistleblowing legislation expands the definition of a whistleblower to include any individual who, acting in good faith and without direct financial compensation, reports or discloses information about a crime, a misdemeanour, a threat or harm to the general interest, a violation or an attempt to conceal a violation of international law, European Union law, or French law. This broadened definition can encourage more individuals to come forward with crucial information, fostering a culture of transparency within organisations.

Reporting Mechanism

SAPIN II required companies with 500 or more employees to implement an internal compliance program to fight corruption and trading in influence, which also necessitated the creation of a whistleblowing system. Companies with 50 or more employees were obliged to put a whistleblowing system in place. The new law maintains this requirement but also provides more detailed guidelines on how these systems should be implemented.

Hierarchy of Reporting Channels

Under SAPIN II, an internal report was mandatory and if it was not processed, this could be escalated to an external report, or public disclosure if necessary. The transposition of the EU Directive abolished this “cascading reporting” system – i.e. the hierarchy between reporting channels. The new whistleblowing law in France states that whistleblowers may opt to send an internal alert, send an external report, or make a public disclosure.

Protection of Whistleblowers

While SAPIN II did provide protections for whistleblowers, the new law extends these protections to facilitators and individuals associated with whistleblowers. This includes unions, associations, colleagues, or relatives involved in the whistleblowing report.

The law ensures the confidentiality of the whistleblower’s identity, the individuals implicated by the alert, and the information collected. This robust protection can reassure potential whistleblowers that their actions will not lead to personal or professional repercussions. The law also extends protection to facilitators and individuals associated with whistleblowers.

While SAPIN II was a significant step forward in the protection of whistleblowers in France, the new French whistleblowing legislation1, further strengthens these protections and provides more detailed guidelines for organisations to follow. This makes it an opportune time for organisations to review their existing whistleblowing systems and ensure they are in line with the new requirements.

Compliance with the Law: A Step-by-Step Guide

Compliance with the new law involves several key steps:

  • Develop a Code of Conduct

Organisations should develop a code of conduct that clearly outlines prohibited behaviours associated with bribery and corruption. This code should be communicated to all employees and regularly updated to reflect changes in laws and regulations.

  • Implement a Reporting Mechanism

Organisations are required to implement appropriate procedures for collecting alerts raised by their staff or external contractors. An external whistleblowing hotline, such as those offered by Safecall, can provide a confidential and anonymous platform for employees to report misconduct.

  • Invest in Robust Accounting Controls

Organisations should invest in robust accounting controls to prevent the payment and concealment of corrupt payments. These controls should be regularly reviewed and updated to ensure their effectiveness.

The Safecall Advantage

In light of the new French whistleblowing legislation, professional services firms may find it beneficial to partner with an external provider like Safecall. Our whistleblowing hotline solution offers a secure and anonymous platform for employees to report misconduct. By doing so, we help organisations comply with the new law, foster a culture of transparency, and protect their reputation.

In conclusion

The LOI n° 2022-401 represents a significant advancement in the protection of whistleblowers in France. By understanding and complying with this law, organisations can not only meet legal requirements but also enhance their ethical standing and operational efficiency. The transposition of the EU Whistleblowing Directive into French law has further strengthened the protections available to whistleblowers, making it an opportune time for organisations to review their existing whistleblowing systems and ensure they are in line with the new requirements.

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