The very Sapin II | Made in France

   In the area of anti-corruption initiatives a prominent place is taken by France — since 2016 and till now. It is not the first attempt to fight with corruption: we can also think of the Anti-Corruption Act of 2007.

   The latter law wasn’t successful and comprehensive; among the main reasons for reform was the lack of competitiveness of the French economy (not a will to improve working conditions). Chasing international standards of trade, France established a good solution - the Sapin II law.

   The deadline for new legislation was in January 2018, so now we can finally talk about the first results and all the requirements for setting up a whistleblower hotline.

Closer to whistleblowing

     Even though the law intended to save money (and French reputation), we can observe a benefit for whistleblowers as a final result. Employees from both the public and private sector now can officially blow the whistle and be protected from dismissal and any discrimination in the workplace.

   The law defines whistleblower as a person who reports a crime or any violation individually and in good faith.In good faith” is a necessary clarification which usually means two things: the law doesn’t provide for any reward for whistleblowers, and he/she can be penalized afterwards (we can see a similar one on the UK law and many others).

   French approach also includes a so-called system of hierarchy: a whistleblower should report internally in the first place using a hotline. Only after the lack of response from the designated person, a whistleblower has a right to go further - report to a judicial authority or media (in case of emergency).

   The law protects whistleblower’s confidentiality and strictly forbids any disclosure attempts. Anonymity is still a desirable option: it is allowed by the Sapin II law but not encouraged. Anonymous reports significantly complicate the process of investigation and can refer only to exceptional cases. According to this, the employee makes a decision in which way he/she should blow the whistle and may be discouraged because of fear of retaliation.

Employer? Organize your staff

   When it comes to business owners, the law obliges them to create internal report channels in a precise manner. Three ways are possible: no report system required (for tiny companies), an obligatory system for bigger companies (starting from 50 employees) and extensive system for more than 500 employees. The latter case is the target of Sapin II - mostly bribery and corruption is more harmful on the higher level of importance.

   The employer should ensure that all the employees are aware of the compliance system and the process of reporting. The system itself should meet basic requirements:

  • be technically suitable for collecting different types of alerts (evidence in pictures, for example)
  • Keep the information only for a period of investigation and destroy collected alerts when the case is closed
  • have a fixed timeline for the response; the employee should be informed about the results of the investigation

   Special consideration should be given to data processing within the internal system.

French Data Protection Authority has to authorize the system, so all the requirements regarding the security measurements should be met.

   The company sends a standard application form which will be approved by FDPA - after this, the employer can lawfully process the alerts.

Big numbers - big changes?

   The good law can be distinguished from the bad by the determined punishment for violation of the law. The French approach is comprehensive in this sense and clarifies penalties for whistleblowers and their employers.

For any attempt to breach the confidentiality of the whistleblower, the employer will pay starting with 30000€ and up to 150000€ (the upper limit is for legal entities).

   If the employee acts in bad faith, he or she also pays - the cost of personal grievance is 15,000€. Since 2019 is not over, there are no statistics for resolved cases of whistleblowers. However, the Sapin II has much in common with new EU legislation (which means it is quite relevant), so it is very likely to show some results in the nearest time in the corruption rate by regions.

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