• Entering into force on September 1, the Waserman law transposes a European directive while retaining certain achievements of the Sapin II law.

  • Notion of mitigation, provision mechanism, criminal immunity… The pitcher knows new protections and advantages.

  • However, there are still some limits, such as the sanctions granted to the employer or the role of the facilitators, as explained to us by a lawyer from the MLA.

Edward Snowden, Julian Assange, Irène Frachon, Pierre Hinard, to name but a few… For years now, whistleblowers have been an integral part of the landscape, having revealed large-scale scandals.

To give them protection, the Sapin II law introduced for the first time, in 2016, a whistleblower status.

Six years later, this time it was the Waserman law that came into effect on September 1st.

Its goal: to go further by transposing a European directive while keeping certain achievements of the Sapin II law.

To better understand the challenges of this new text, Pauline Delmas, lawyer at the House of whistleblowers (MLA) *, explains to us what it changes concretely.

We promise, we'll make it clear.

No more internal reporting

The first thing to remember from this law is the notion of palliating.

Before, with the Sapin II law, when the whistleblower wanted to report a malfunction, he had to follow a three-step process.

An internal report - to a superior, for example;

then an external report (administrative, judicial, professional authority);

and finally if, three months later, nothing was done, he could resort to a public disclosure in the media.

“The new law allows the whistleblower to report directly to an external authority.

It is much less exposed,” explains Pauline Delmas.

Example (fictitious) with François, 54, who works at a car dealership.

“One day, he realizes that one of his colleagues is bribing to obtain public contracts.

Under the old law, he had to report the facts within his company.

No luck, his superior is very friendly with this famous colleague… François, conscientious, still reports the bribes.

But it does not pass with his superior, who treats him as an “informant”.

François is sanctioned, then fired.

With the Waserman law, there is no longer any need to trace the facts internally.

With the new law, Antoine Deltour would not have been worried

Another change is the provision mechanism.

François always, our fictitious whistleblower, laid off, launches into a legal fight.

But after six months of proceedings, he begins to struggle financially.

To restore some semblance of balance, the new law proposes a provision for costs.

The whistleblower can ask the judge that the opposing party - in the case of François, his superior - pay him his legal costs before the trial is decided.

And if he loses his case, he can still keep this provision.

Pauline Delmas brings up another important point: complete criminal immunity.

“Under the Sapin II law, a whistleblower who had kept documents to prove malfunctions in his company could be attacked by his employer for theft and concealment.

He wasn't protected on how he got the evidence.

The lawyer thus evokes the case of Antoine Deltour, at the origin of the LuxLeaks.

“He worked as an auditor in the firm PricewaterhouseCoopers, in Luxembourg.

He found that there was a lot of tax optimization, so he used internal documents to prove it.

Documents he kept, even after his dismissal.

His employer sued him for theft and concealment.

With the new law, Antoine Deltour would not have been worried,

“as long as the means to obtain the information are lawful”.

Which it was.

A few “holes in the racket”

If the Waserman law therefore provides better protection, the House of whistleblowers notices some “holes in the racket”.

The first concerns the facilitators, i.e. any natural or legal person who helps the launcher in his reporting process.

Finally recognized, they can also benefit from certain protections, in particular the provision mentioned above.

But where the law fails, according to the jurist, is that “unlike journalists, facilitators do not benefit from the secrecy of sources”.

They are therefore obliged to reveal the identity of the launcher if they file a complaint for him and his name is claimed.

"It is not impossible that tomorrow, a defamation complaint will be filed against an association or a union for their role as facilitator...", also regrets Pauline Delmas. 

Another limitation is the financial question.

When the pitcher makes his whistleblowing course, he has often lost his job and has to pay a lawyer.

For the lawyer, if the provision for costs is a good thing, she would have liked “a fund dedicated to launchers throughout their journey (…), to help them survive”, and not at the end.

Finally, the MLA notes that the sanctions against an employer who dismisses an employee because he is a whistleblower are weak.

He can end up in the industrial tribunal and receive a civil fine of 60,000 euros.

And, according to Pauline Delmas, “there are no criminal penalties and (…) the fine can be very small depending on the means of the company”.

In the end, these measures are “curative” and not “preventive”, as Pauline Delmas points out.

This may discourage some, “while they are issuing an alert for the general interest”.

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The House of whistleblowers is an association which tends to improve the protection of whistleblowers in France.

Its job is to support them on a daily basis, and to mobilize decision-makers and public opinion to change legislation.

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