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Article Date: 15/05/2006
Article Title: Whistleblowing - The French position
As anticipated in our February 2006 e80, on 1st March 2006, the French data protection agency (CNIL) published 20 FAQ for organisations intending to implement a whistleblowing system in compliance with the fast track single authorisation procedure. In this document the CNIL explains what a whistleblowing system is, if it complies with SOX financial and accounting requirements, and it summarises the November guidance document and CNIL’s decision of 8 December 2005 which implemented the single authorisation.
The FAQ draws some interesting conclusions, in particular regarding the possible scope of whistleblowing systems which relate to accounting, finance and anti corruption provisions (FAQ 10) and also to facts which can affect the "vital interests" of the company. For example, the FAQ stipulates that:
"Article 3 of the single authorisation also enables companies to take into account facts that do not fall within the scope of the system due to their seriousness. This seriousness is assessed on a case-by-case basis by the organisation in charge of handling the reports. Facts are considered to be serious when they affect the vital interests of the company or its employees’ physical or mental integrity (see Art.3 of the single authorisation)."
Examples of serious facts might be facts such as threats to the safety of another employee, discrimination, insider trading, conflict of interests or disclosure of a manufacturing secret can be reported by via whistleblowing tools. However, one has to question how we can determine which facts affect the vital interests of the company? Indeed, the company’s vital interests will not be affected in the same way for a multinational as for a very small company, either of which could be subsidiaries of US companies.
Should it therefore be understood that certain facts can be reported in some companies, and not in others? Practice and experience will probably answer this question.
Copies of the FAQ (which is currently available in English) can be obtained from the CNIL website (www.cnil.fr)
What next? French Employment law issues
A number of French employment law questions related to whistleblowing schemes remain unanswered: Do these schemes need to be accepted by employee representatives? Should they be included in companies’ internal regulations which would mean following specific procedures and regulations of implementation as required by the French Labour Code?
We are now awaiting a report from the French Ministry for Employment on the application of French Employment law to whistleblowing schemes. This report will be drawn up on the basis of the practices of large companies or groups in France, and should be published shortly.
Christel Cacioppo
Avocat à la Cour
Frere Cholmeley Eversheds
8 place d'Iéna
75116 Paris
+ 33 1 55 73 40 00 tel
+ 33 1 55 73 40 11 fax
christelcacioppo@eversheds.com
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