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This article was written by Blandine Garot–Jacquey, a master’s student in international human rights law at Lund University. She holds an LL.B. in German Law from the University of Potsdam, an LL.B. in French Law and an LL.M. in European Law from the University of Paris Nanterre. She specializes in immigration law and data protection law.
This article is based on my work with another student for the Maison des Lanceurs d’Alerte, a French whistleblower protection association, as members of the Paris Nanterre University Law Clinic. Between October 2022 and May 2023, we met with thirteen of the forty-one external agencies responsible for handling whistleblower reports. Our full report is published on the Law Clinic’s website.
On December 17, 2023, the European Commission will publish its report on the implementation and application of the Directive 2019/1937 on the protection of whistleblowers (“The directive”). This directive was adopted on October 23, 2019, and sets out the conditions under which a person can be considered as a whistleblower, and then benefit from special protection. As a directive, this European Union (“EU”) legal text must be transposed into national law. In France, this directive has been transposed by the 2022 Waserman law and its implementing decree. The Waserman law is considered as the « best whistleblower protection law in Europe”. But what about its effectiveness and efficacy?
The new definition of “whistleblower”
First of all, what is a whistleblower? According to the EU directive, a whistleblower is a person who reports violations of EU law. This limitation of the scope of the violation is understandable, as the EU only has competence in the areas listed in the founding treaties. In France, a whistleblower is a person who reports a violation of the law – national, European or international law – or a threat or harm to the general interest. This report must be made without direct financial reward and in good faith. One of the greatest contributions of this directive is that whistleblowers will now benefit from the same status regardless of the area of the violation reported. In fact, prior to this directive, whistleblower protection was sectoral: the legislation was different for each sector, such as the environmental sector and the financial sector for the corruption.
The whistleblower’s procedure to report a violation
To report a violation, the whistleblower may have two options: the internal channel and the external channel. The internal channel is usually where the whistleblower works and learns about the violation. In France, reporting to the internal channel is no longer mandatory and whistleblowers can directly use the external channel. Member states have designated independent and autonomous authorities to receive the external report. Only after an external report has been made can the whistleblower make a public disclosure. In France, there is forty-one external authorities. Some external authorities are departments within ministries, such as the service central des armes et des explosifs (central arms and explosives department) of the Ministry of the Interior, others are independent administrative authorities such as the Commission Nationale de l’Informatique et des Libertés (French Data Protection Authority) and the Autorité de la Concurrence (French Competition Authority), while others are professional bodies such as the Conseil National de l’Ordre des Médecins (professional order of doctors).
How to measure the efficacy and effectiveness of a legal norm
According to Antoine Jeammaud and Evelyne Severin, the effectiveness of a legal norm is measured quantitatively or even statistically in terms of the conformity of concrete situations or operations carried out in application of the norm with the model aimed at by the norm. In other words, the effectiveness of a norm is a measure of the gap between what the law provides and what is actually practiced. The notion of effectiveness differs from the notion of efficacy in that the efficacy of a legal norm lies in the achievement of the result sought by the authority that enacted it. The aim of the directive and the Waserman law is to protect whistleblowers. As the external authorities play an important role in whistleblower protection, we met for the Maison des Lanceurs d’Alerte the French external authorities. By analysing the way in which reports were handled and the difficulties they encountered, we were able to determine the effectiveness and efficacy of whistleblower protection in the context of the handling of reports by external authorities.
Limits to the effectiveness in France
The decree of implementation of the Waserman law, published on October 3, 2022, lists all the external authorities. The peculiarity of this decree is that it is of immediate application: the external authorities, the day after the publication’s decree, must have written and oral reporting means and a procedure to handle whistleblowers’ reports. This is in fact impossible because all the external authorities did not know beforehand that they would be listed in the decree. As of the end of May 2023, only three of the forty-one external authorities have established a procedure that complies with the requirements of the law and the decree.
Limits to the efficacy in France
After the meetings with the external authorities, we have established that several aspects could prevent a real protection of whistleblowers in the context of the handling of reports by the external authorities. Some of these aspects are the following:
- The outcome of the handling of the report if the external authorities do not have the power to sanction the person who commits the violation;
- The security of the means of communication to ensure the confidentiality of the exchange with the whistleblower;
- The management of internal reports within an external authority;
- The necessary cooperation between external authorities having the same area of competence or being contacted for the same report.
The directive is undoubtedly a major step forward in the protection of whistleblowers. Although its implementation in France has taken some time – it took until October 2022 to determine which external authorities are competent to receive reports from whistleblowers – it nevertheless provides additional protection for whistleblowers and those around them, in particular intermediaries, i.e. the people who helped the whistleblower to make a report. The Waserman law also expands the scope of whistleblowing. Certain difficulties have already been raised with the Défenseur des droits, which supervises external authorities. At the European level, the European Commission will make an initial assessment on December 17.
Décret n°2022-1984 du 3 octobre 2022 relatif aux procédures de recueil et de traitement des signalements émis par les lanceurs d’alerte et fixant la liste des autorités externes instituées par la loi n°2022-401 du 21 mars 2022 visant à améliorer la protection des lanceurs d’alerte.
Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law.
GAROT–JACQUEY B., LELEUX C., Loi Waserman et son décret d’application : Rapport sur l’effectivité et l’efficacité du traitement des alertes par les autorités externes, June 2023, avalaible at https://ufr-dsp.parisnanterre.fr/formations/euclid/promotion-2023
JEAMMAUD A. et SEVERIN E., « Evaluer le droit », Recueil Dalloz, 1992, p. 263.
LECLERC O. et CHATEAURAYNAUD F., « Controverse : La transposition de la directive européenne sur la protection des lanceurs d’alerte, rupture ou continuité ? », Rev. trav., 2022. p. 281.
LECLERC O., Protéger les lanceurs d’alerte. La démocratie technique à l’épreuve de la loi, LGDJ, Lextenso éditions, col. « Exégèses », 2017.
Loi organique n°2022-400 du 21 mars 2022 visant à renforcer le rôle du Défenseur des droits en matière de signalement d’alerte
Loi n°2022-401 du 21 mars 2022 visant à améliorer la protection des lanceurs d’alerte.
MAISON DES LANCEURS D’ALERTE, Lancer l’alerte. Guide à usage du lanceur d’alerte et de ses soutiens, 2022.
TALAMON F., LOTH B., Lanceurs d’alerte, Delcourt, 2021.