The whistleblower – The Waserman law (3/4)

Law No. 2022-401 of March 21, 2022, known as the “Waserman” law, transposes the European directive of October 23, 2019 and strengthens the protective status of whistleblowers.

It modifies the definition of whistleblower, which is now as follows: “a natural person who reports or discloses, without direct financial compensation and in good faith, information concerning a crime, an offence, a threat or harm to the general interest, a violation or an attempt to conceal a violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such a commitment, of the law of the European Union, or of a law or regulation”.

This third post presents the contributions of the Waserman law, presenting the new elements that characterize the status of whistleblower:

Concerning the author of the alert, the reform extends the conditions for receiving the quality of whistleblower:

• Only a natural person can now be a whistleblower, which excludes legal entities such as associations for example;
• The whistleblower must not receive any “direct financial compensation“. This clarification precise the former provisions which stipulated that the whistleblower must be, more generally, “disinterested“;
• The condition relating to personal knowledge of the information revealed is removed, the whistleblower can disclose information that has been reported to him in the professional environment;
• Finally, the whistleblower’s entourage can benefit from protection. These are, on the one hand, the “facilitators”, i.e. the natural or legal persons of private non-profit law who provide assistance to the whistleblower; and on the other hand, any natural or legal person having a professional link with the whistleblower.

As regards the information revealed, the scope is extended to attempts to conceal a violation of an international commitment and to the violation of European Union law. The “serious and manifest” nature of the violation is no longer a condition. The classic exclusions of national defence secrecy, medical secrecy and lawyer-client secrecy are enriched with the secrecy of judicial deliberations, the secrecy of the investigation and of the judicial inquiry.

Regarding the proceeding of the alert, the hierarchy of reporting channels is simplified:

• First, the whistleblower can choose between the internal channel (the company or administration in which he or she works), and the external channel (the administrative or judicial authority, the professional order). The external channel must acknowledge receipt of the alert within seven days. A forthcoming decree will impose a three-month response period for whistleblowers and will specify the list of authorities competent to receive and process alerts;
• Then, public disclosure may occur if the alert is not processed by the external channel within the above-mentioned time limit, if there is a risk of retaliation, if there is a “serious and imminent danger“, or if there is an “imminent or obvious danger to the general interest” for information obtained in a professional environment.

Concerning the effects of whistleblowing, the reform strengthens the protection granted to whistleblowers:

• The whistleblower enjoys both civil and criminal immunity;
• Any person who attempts to prevent the reporting of a whistleblower is liable to a civil fine of 60,000 euros. In the event of legal proceedings for retaliation against the whistleblower or an attempt to thwart his or her reporting, the judge may grant the whistleblower an advance on legal costs depending on the respective economic situation of the parties and the foreseeable cost of the proceedings, or an advance to cover his or her subsistence when his or her financial situation has “seriously deteriorated” as a result of the reporting;
• The whistleblower can also benefit from psychological and financial support measures from external authorities.

The Waserman law will come into force on September 1, 2022, it being recalled that some of its provisions are subject to the subsequent publication of an implementing decree. We can already anticipate that this new framework for the status of whistleblower has multiple consequences in criminal law, which will be the subject of a 4th and final news post.