Protection against retaliation

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Prohibition of retaliation

The objective of the Law of 16 may 2023 is to protect whistleblowers against any action likely to compromise their professional situation, their reputation or their wellbeing, thereby ensuring a safe environment for reporting violations.

All forms of retaliation, including threats and attempts to retaliate, are prohibited against whistleblowers.

 Examples of prohibited retaliatory measures include :

  • a modification of the existing employment contract (such as suspension, dismissal, termination, reduction of salary, modification of working hours);
  • demotion;
  • withholding of a promotion;
  • suspension of training;
  • changes to the place of work to assigned duties;
  • disciplinary measures;
  • intimidation, harassment, or exclusion.

Legal recourse against retaliation

The Law provides whistleblowers with a legal shield against retaliation. If you are dismissed, demoted or suffer any other punitive measure after revealing irregularities, such actions may be declared null and void. You have 15 days to contest these measures before the competent court. If this time limit elapses, you may nevertheless claim compensation for the damage suffered. However, this will not annul the retaliation measure already implemented.

The Law shifts the burden of proof onto those who targeted the whistleblower, thereby requiring the perpetrator of retaliation to prove that their actions were legitimate.

Whistleblower’s exemption from liability

If the alert complies with the provisions of the Law of 16 May 2023, the whistleblower is not considered to have violated the restrictions on the disclosure of information and therefore no liability is incurred. Thus, whistleblowers are protected against all forms of retaliation provided that:

  • have reasonable grounds to believe that the information reported on breaches is true at the time of reporting and that it may represent a danger to the public interest;
  • have reported internally (via the internal reporting channel of their company or administration) or externally (via an external reporting channel of the competent authorities);
  • the obtaining of information or access to information that is reported or disclosed does not constitute a self-standing criminal offence.

Criminal sanctions

Persons who take retaliatory measures against a whistleblower can, in addition to the annulment of measures taken, face fines of up to €25 000. If confidentiality is breached, additional administrative fines may be imposed.

In the event of a malicious report, meaning that the author has knowingly reported or publicly disclosed false information, that person may be liable to penalties, including:

  • a prison term of 8 days to 3 months and to a fine of between €1 500 and €50 000;
  • civil proceedings, whereby the entity that has suffered harm may seek compensations for the loss before the competent court.

Sector-specific provisions on corruption, trading in influence and unlawful interests

Law of 13 February 2011 strengthening the means of combating corruption (Loi du 13 février 2011 renforçant les moyens de lutte contre la corruption et portant modification 1) du Code du Travail 2) de la loi modifiée du 16 avril 1979 fixant le statut des fonctionnaires de l'Etat 3) de la loi modifiée du 24 décembre 1985 fixant le statut général des fonctionnaires communaux 4) du Code d'instruction criminelle et 5) du Code pénal).

Labour law (Code du travail)

Please note that the translations below are provided for information purposes only and have no legal value.

 Art. L. 271-1.

(1) The employee may not be subject to reprisals for their protests or refusal of a fact which they consider, in good faith, to constitute unlawful taking of interests, corruption or trading in influence under Articles 245 to 252, 310 and 310-1 of the Criminal Code, whether that fact is the work of their employer or of any other hierarchical superior, co-workers or external persons in relation to the employer.

(2) Similarly, no employee may be subject to retaliation for having reported such an act to a hierarchical superior or the competent authorities or for having testified to it.

(3) Any contractual stipulation or any act contrary to subsections (1) and (2), and in particular any termination of the employment contract in violation of these provisions, is automatically void.

(4) In the event of termination of the employment contract, the employee may request, within 15 days of notification of the termination, by simple request to the president of the labour court adjudicating as a matter of urgency, the parties heard or duly summoned, to declare the termination of the employment contract null and void and to order its continuation, or, where appropriate, its reinstatement in accordance with the provisions of Article L.124-12(4).

(5) The order of the President of the Labour Court is provisionally enforceable; it may be appealed, which shall be brought by simple application, within 40 days of notification by the Registry, before the magistrate presiding over the Chamber of the Court of Appeal to which appeals in the field of employment law are assigned. A decision shall be taken as a matter of urgency and the parties shall be heard or duly convened.

(6) The summonses by means of a registry provided for in paragraphs (4) and (5) shall contain, on pain of nullity, the particulars prescribed in Article 80 of the New Code of Civil Procedure.

(7) An employee who has not invoked the nullity of their dismissal and requested the continuation or, where appropriate, reinstatement in accordance with paragraph (4) of this Article, may still bring legal proceedings for compensation for the unfair termination of the employment contract on the basis of Articles L.124-11 and L.124-12.

Article L. 271-2.

Without prejudice to the provisions of Article L.124-11 of the Labour Code, as soon as an employee establishes, before a court or other competent body, facts from which it may be presumed that they have been the victim of reprisals prohibited under Article L.271-1, it is for the employer to prove that those facts are justified by other objective factors.

Civil service (Fonction publique)

Please note that the translations below are provided for information purposes only and have no legal value.

Art. 44bis. du Statut général des fonctionnaires de l’Etat (General Statute of Civil Servants)

1. A civil servant may not be subject to retaliation either because of a protest or refusal against an act or conduct contrary to the principle of equal treatment laid down in Articles 1a and 1b of this Law, or in response to a complaint or legal action seeking to ensure compliance with the principle of equal treatment.

2. Similarly, no civil servant may be subject to retaliationl either for having testified to the acts defined in Articles 1bis and 1ter of this Law or in Articles 245 to 252, 310 and 310-1 of the Criminal Code, or for having reported them.

3. Any provision or act contrary to the two preceding paragraphs, and in particular any disciplinary measure in breach of those provisions, shall be null and void as of right.

 

Art. 55bis. du statut général des fonctionnaires communaux​(General Statute of municipal servants)

 

1.The municipal servant shall not be subject to retaliation for any protest or refusal against any act or conduct contrary to the principle of equal treatment laid down in Articles 1a and 1b of this Law, or in response to any complaint or legal action seeking to ensure compliance with the principle of equal treatment.

2.Similarly, no municipal servant may be subject to retaliation either for having testified to the acts defined in Articles 1a and 1b of this Law or in Articles 245 to 252, 310 and 310-1 of the Criminal Code, or for having reported them.

3.Any provision or act contrary to the two preceding paragraphs, and in particular any disciplinary measure in breach of those provisions, shall be null and void as of right.