On February 16, Parliament passed the law Waserman on the protection of whistleblowers. By transposing a European directive of 23 October 2019, it reinforces the protection provided by the law known as “ christmas tree 2 ” of 2016. A breakthrough for which 36 associations and unions fought together for the Chamber of Whistleblowers, explains its delegate general, Glen Millot. Meet.
Legal News: What is the origin of this law Wasermanto improve whistleblower protection?
Glen Millot : This law was intended to implement the European directive adopted in 2019, that is, three years after the law christmas tree 2. The latter only protected the whistleblower, defined as the person who had personal knowledge of the information disclosed by him. This had the consequence that a company could well intimidate the whistleblower’s relatives. And then, when a whistleblower punctures his car’s tires, it can affect his family members… The European directive innovated by taking into account the whistleblower’s family members, considered as “facilitators”. She considered that the whistleblower’s family could receive threats or be intimidated and therefore needed to be protected. This directive also required Member States to abolish the obligation to use the internal channel to raise the alert. The argument was obvious: it was about mitigating the risk of destruction of evidence and reprisals against the whistleblower. France, like the other Member States, had to transpose this directive before the end of 2021. Like other countries, it is a little late. but the law Waserman goes beyond the transposition of the directive.
AJ: How does this law Waserman goes further than the European directive it transposes?
Glen Millot : The law Waserman innovates and goes further because it includes non-profit legal entities in these facilitators. This seems essential to us. The whistleblower is isolated and fragile. A friend or relative can help, but not as much as a non-profit organization, either in terms of advice or procedures. The directive also urged states to be creative. She urged them to support the whistleblowers financially and psychologically. The law Waserman took a creative step in this direction: when a whistleblower is assaulted through a choking procedure – of defamation or slanderous denunciation – he can ask the judge for a provision of court costs to be paid by the aggressor. If he is found to be acting in good faith – which is necessary for him to qualify as a whistleblower – he can permanently keep the deposit paid by the offender, even if he loses the court case. This helps whistleblowers, but only those who are in the process. Nothing is planned for someone who has been fired, blacklisted and unable to find a job…
AJ: On the other hand, you did not obtain, as you requested, support funds for whistleblowers…
Glen Millot : The whole question is how to feed this support fund. We figured it could be fueled by the fines that would come with the new law. It is still necessary for the fines to be pronounced and sufficient. Other budget line mechanisms were devised. For example, that it is fed by a contribution from insurers, such as for victims’ insurance funds. We ran into article 40 of the Constitution, which prevents parliamentarians from defining the budget. They could not, therefore, include the creation of a support fund in the law.
AJ: How did the associations weigh in?
Glen Millot : We worked with Representative Sylvain Waserman, the author of this bill. He had already been at the origin of a Council of Europe recommendation, which went beyond the directive. He also had interlocutors like Medef and FNSEA and was looking for a compromise. He did not want the whistleblowers to be legal entities. We also worked downstream with all parliamentary groups in the National Assembly and the Senate, to which we tabled amendments. We also launched campaigns to question parliamentarians, seeking to sensitize public opinion, so that it demands the strengthening of protection for whistleblowers. We publish press releases, analyses. We have had very positive feedback. Parliamentary groups appropriated our amendments. We have had discussions with the government in the hope that they will take advantage of this need to create a support fund. We didn’t get what we expected at this point. But we were pleased to see that, at least, the directive had not been transposed, as we feared. Sylvain Waserman got the green light from the government, in particular to facilitate legal entities.
AJ: This law Waserman is it progress?
Glen Millot : That is progress. We avoided a setback in some points. For example, the Senate committee wanted to resize the definition of whistleblower, removing warnings about risks and threats to the general interest. This would have the effect of hampering all health and environmental alerts that do not concern crime. We saw, for example, in the case of guitar pick that it took years before what Irène Frachon revealed was considered a crime. At the time, she would not have been considered a whistleblower.
AJ: Are whistleblowers adequately protected today?
Glen Millot : Personally, I’m pretty critical when it comes to protecting whistleblowers. If we protected them, there would be no reprisals. There, reprisals happen and we seek to repair. Instead of a protective law, the law Waserman it is for me a law of reparation. We also proposed that the whistleblower have the same status as a protected employee. That would mean getting permission from the labor inspectorate to fire them. This proposal was not accepted. The law christmas tree 2 prohibited reprisals, but did not prevent them from occurring and the whistleblowers finding themselves, despite the law, in situations that took 3 years from their lives, or even more. Protection comes after the fact, when the damage is done, and the law Waserman shouldn’t change much! The alert culture must evolve in companies. It’s a bet on the future…
AJ: Do you think companies are acquiring a whistleblowing culture?
Glen Millot : We sense a different frame of mind on the part of employers. It did not prevent legal persons from being considered facilitators. Perhaps leaders sense that they have an interest in the warnings being given. I often take the example of Spanghero’s horse lasagna. The opinion resembles horse lasagna, but not the brand. The entire industry was splashed. A whistleblower could have spared other companies in the industry the harm of a loss of reputation. On the other hand, companies feared that a pandora’s box was being opened. At Casa dos Denunciantes, we received 700 support requests in 2 years of existence. The Defender of Rights has received a few hundred: this represents 1% of the cases it handles in the role of mediator for the French Republic. This is not the dreaded tsunami.
AJ: What are you waiting for now?
Glen Millot : We cannot limit ourselves to protection. In all the laws on alert, the treatment was never resolved. One way to deter whistleblowers is to ensure that there is no treatment behind it. The Defender of Rights must protect whistleblowers and refer them to the institutions that will deal with the alert. only the law Blandin, of April 2013, on public health and the environment considered dealing with the alert, and lost most of its prerogatives. The whistleblowers do not understand that their interlocutors do not take their report into account. That’s why they often end up going to the media, because denouncing them is useless.