Internal whistleblowing system

Pursuant to Article 17 II 2° of the Sapin 2 Law, the chairs/presidents, chief executive officers, general managers and managers of companies targeted by said Law are required to implement:

“an internal whistleblowing system for receiving reports from staff members about conducts or situations that violate the company’s code of conduct”.

In addition, Article 8 of the Sapin 2 law requires companies with more than 50 employees to put in place:

“an appropriate procedure for collecting reports from permanent staff members or external and occasional contractors”.

Very recently, the Law of March 21, 2022, which will come into force on September 1, 2022, aims at better protecting and supporting whistleblowers by strengthening the provisions of the Sapin 2 law that established general whistleblower protection regime.

The reporting procedure has been made more flexible and no longer forces the whistleblower employee to report internally, under penalty of not being able to benefit from the whistleblower protection status.

Article L. 1321-2 of the French Labor Code has been amended and provides that employers are required to mention in their internal rules and regulations the existence of the whistleblower protection system in order to ensure that employees are duly informed on the subject.

Sanctions/penalties in case of retaliation against whistleblowers are reinforced. The list of prohibited bases for discrimination provided for in Article L. 1132-1 of the French Labor Code has been expanded to include whistleblowers.

As such, in a situation where different pieces of legislation and measures coexist, it is advisable, for the sake of readability, to set up a single technical system for the collection of reports and ensure that such reports will be appropriately processed.

In this context, Soulier Avocats assists its clients at each step of the creation and implementation of an appropriate internal whistleblowing system that complies with the provisions of the Sapin 2 Law, other applicable provisions, applicable requirements under French labor law and French regulations relating to the protection of personal data in order to report to a dedicated designated person any conduct or situation that may be contrary to the company’s code of conduct, in order to put an end to it and, if necessary, to take appropriate sanctions.

Our dedicated team provides guidance and assistance at the following stages:

• Determination of the whistleblowing system best-suited to the specificities of the company and, as the case may be, coordination with the various reporting systems already in place,

• General organization of the whistleblowing system: Role of the staff supervisor, check of potential conflicts of interest for persons responsible for processing whistleblower reports, management of the system (internal management vs. outsourced management), scope of deployment, etc.,

• Establishment of the procedure for processing whistleblower reports: Definition of the various steps to be followed to make a report, terms and conditions of access to the system and exchange of information with the whistleblower, means of processing of the whistleblower report by the recipient, rights and protection of the persons concerned, management of anonymity, formalization of the internal investigation procedure, establishment of the criteria for reporting to the judicial authority and/or the French Anti-Corruption Agency, security measures and retention of personal data, etc.,

• Implementation of the internal whistleblowing system: Incorporation of the whistleblowing system in the company’s code of conduct, dissemination of the internal whistleblowing procedure to all staff members and awareness-raising actions, establishment of the various levels of control, definition of indicators for assessing the system, etc.,

• Adaptation of the internal rules regulations to include a reference to the whistleblower protection system,

• Archiving whistleblower reports and their follow-up, in particular differentiating the period of data retention depending on the follow-up given to the report.