I- The State’s Obligation to Protect Human Rights
The European Framework
Actions Underway [page 18]
- France has transposed the European Directive on trade secrets into national law, allowing businesses to protect trade secrets while assuring the necessary transparency of business activities and conduct, and the protection of whistle-blowers acting in the public interest.
II- Businesses’ Responsibility to Respect Human Rights
5. Employee Representatives [page 43]
The NAP lists exiting legislation related to whistle-blowers in matters of corruption, public health, conflict of interest, tax evasion and large-scale economic and financial fraud, which protect individuals (referred to as whistle-blowers) requesting the company to disclose information either directly or through legal means. It furthermore mentions existing legislation asserting workers councils’ “right to economic alert”, which enables it to demand information in case of significant preoccupations regarding the company’s financial situation.
III- Access to Remedy
At the National Level
1.6 Whistleblower Rights [page 53]
The Act 2016-1691 of 9 December 2016 on transparency, fighting corruption and modernizing the economy replaced earlier sector-specific provisions on whistleblowers. Under the new Act, a single framework was created to protect whistleblowers who now share a common status regardless of the field concerned.
The whistleblower status now includes:
- A general definition: a whistleblower is defined as an individual who reveals or reports,
disinterestedly and in good faith, a crime or offence; a serious and manifest breach of an
international commitment duly ratified or approved by France, of a unilateral act of an
international organization adopted on the basis of such commitment, or a serious breach
of a law or regulation; or a serious threat or harm to the public interest, of which the
whistleblower has had personal knowledge.
- A process for raising alerts: in order to receive legal protection, the whistleblower must respect a three-step process, raising the alert first with his/her employer or the contact person designated by the employer, second with the judicial or administrative authority and third with the public, as a last resort.
- Three forms of legal protection:
- Professional protection against all forms of retaliation for raising the alert;
- Protection against criminal liability: whistleblowers are not considered criminally liable for disclosing information that is a legally protected secret if this disclosure is necessary and proportionate to the interests being defended and the whistleblower respects the alert process described above. However, this exemption does not cover whistleblowers who disclose national defence secrets, medical secrets or lawyerclient communications.
- Protection against being prevented from raising the alert : any person who interferes with the transmission of an alert by a whistleblower is punishable by law by up to one year of imprisonment and a €15,000 fine. The Act also reinforces sanctions for malicious defamation proceedings against whistleblowers.
Actions to be Implemented
- Amend Article 113-8 of the Criminal Code so that a prosecutor’s decision not to open an investigation into a complaint lodged by the victim of a crime committed by a French entity abroad can be appealed.
- Continue to examine national and international options to address the denials of justice faced by plaintiffs attempting to take legal action to obtain remedy for harm caused by the subsidiaries of groups operating in countries where courts do not have the necessary independence to deliver justice, or where plaintiffs are threatened.