“The French justice is ranked N° 37 out of 43 European countries, behind Armenia and Azerbaijan”

Council of Europe - European Commission for the Efficiency of the Justice (CEPEJ)

France is a developed country with the most important number of laws. That piece of information heartened me the very month I was made redundant by UBS. I assumed very naively that with such a number of laws, rules and regulations, corruption could not exist in our country. I thought: UBS will be sentenced within a year! When one instills values in one’s children, one cannot anticipate that the respect of the law and of our Constitution is not in the DNA of the very qualified people one is going to confront. My confidence towards the corporate world being then shaken, I turned to the justice but could not imagine that twelve years after filing a complaint against UBS for the illegal selling of offshore products which led to the massive tax evasion of a certain number of clients of the bank, the UBS case would not be solved on the judicial side.

Justice is at the heart of all the files because each action is based on equity, on the judgment of one part. But does the justice obey the truth? Is the justice in power to protect the citizens? Is the justice ethical? Which interests do lawyers defend after taking the oath?

Whistleblowers turn to the justice with the same confidence that the patients turn to their medical doctor. They are absolutely certain that they will succeed with all the elements of evidence that will prove them right. They are convinced that the justice will compensate for the loss sustained, the retaliation and pressures they have suffered because it is repeated that we are very lucky to live in the country of human rights, the country renowned for its freedom of expression.

The majority of the whistleblowers are distraught and helpless. These women and men, who acted with their conscience, face a violence they had never anticipated. The length of the judicial procedures has disheartened and dampened the spirit of the ones who simply wanted to stand up for their loyalty. They are waiting to be officially justified for denouncing illegal activities, illicit, unethical and unfair actions which are often endorsed at the highest level of the State.

Several whistleblowers interviewed for the writing of this book are unanimous: If the laws of the Republic were correctly applied, we would never have experienced our ‘whistleblower’ lives, we would have been protected as witnesses, plaintiffs and / or as victims sometimes. In a nutshell, a law of protection is welcome, however will it be enforced and how will it be done?

The ‘Sapin II’ Law and the Whistleblowers

Until 2016, the association Transparency International described the French legislation in force as such: “The French legislation with regards to whistleblowing is recent (2007 - 2015), segmented and incomplete. In 2014, five laws offered the employees of the private and / or the public sector disparate protections, according to their field of activity. Before 2007, several partial protections were also distributed in different codes. Therefore it is necessary to very precisely check which protections the whistleblower can benefit from according to the alert(s) made, according to the sector of activity (private or public) and with regards to the material field (corruption, health etc.)”. However the law dated November 13^th, 2007 relating to corruption should protect whistleblowers.

It was not until the end of the year 2013 when a law began to really protect whistleblowers and for the general public to become aware of the risks taken by these witnesses. The December 2013 law proposed by the Socialist Deputy Yann Galut had admittedly been the most successful as it then provided that not a single employee of either the public or the private sector could suffer disciplinary action, be discriminated against or dismissed if he or she was exposing a crime or an offense. However in the general public memory, the qualification of ‘whistleblower’ only dates back to 2014 in our country.

Could the subject then be political and not legal, for citizens not to be protected when they do disclose the malfunctions relating to the common good?

For years, the media has published press articles, interviews and reports regarding financial scandals, malfunctions and cases of corruption. Under the pressure from the media, citizens have become aware of the extent of the excesses and discussions have taken place at the French Parliament to culminate in a so-called ‘Sapin II’ law on December 9^th, 2016. The purpose of this anti-corruption law is to target toughening transparency of the democracy and the economy and hence a more efficient struggle against corruption and modernizing the economic life. A section of this law would bring the future whistleblowers all the protections awaited by those who have, until now, never been protected.

Thanks to the frame-work of this law, it suffices to be an honest, disinterested physical person who informs his / her superiors. If the superiors do not react, the alert can then be made to the company management. After a “reasonable period of time” without any answers received, the alert can be directed outside of the company, to entities such as associations or authorities and then to the media if all else fails, however only if authorities remain silent. Furthermore, the whistleblower cannot be made redundant and will be protected from potential retaliation. It is forbidden to disclose his / her identity. Each company of more than five hundred employees must implement a whistleblowing plan and a code of behaviour illustrating which behaviours to ban. Finally if an employee makes a “false alert” he / she will suffer disciplinary action.

This law allowed the creation of the French Anti-corruption Agency in March 2017 and companies and administrations can contact the agency. Furthermore, and from now on, the status of whistleblower is recognized and the latter can as of now enjoy the support of the Defender of Rights. Intellectually, it is an acknowledged advance, especially if the whistleblower who submits a case to the Defender of Rights is thoroughly compensated. The frame-work of this law unifying the status of whistleblower is a great step forward, but does it answer the expectations of the whistleblowers?

As a matter of fact, I personally enter all the scenarios covered by this law. However one must keep in mind that each law – including the ‘Sapin II’ law – is not retroactive even if the trials take place and will take place after the aforementioned law is published.

During my audition at the National Assembly in April 2016, I explained to Sébastien Denaja, Rapporter of the project of the ‘Sapin II’ law, and to Sandrine Mazetier, Deputy of Paris, that the principal action that could help the whistleblower to be protected is an external alert to the company. My statements were recorded by German TV cameras attending this audition. The Compliance Director, the Legal Director and the other key people identified by the management of the company to take note of the alert are in fact members of the company’s board of directors. As a matter of fact, they cannot be both the judge and be judged. They cannot defend their job as well as the truth delivered by a staff member, except if they prove a fantastic courage and integrity that have lacked until now. If the internal channel of the alert was to be chosen, it would have to be doubled to the elected members of the company, the role of which is to defend the interest of the employees and to directly involve the Health and Safety Inspectors in the whistleblowing process. Furthermore, one knows that the number of external alerts is eight times more important than the number of internal alerts. Hence, if associations, NGOs and unions had received a ‘whistleblower’ label, they would have protected the anonymity of the ones who have pieces of information.

A paragraph in the weekly magazine Challenges dated May 4^thto 11^th, 2016 informed us that the “former President of the Bar Association of Paris,