whistleblowing

► Full Reference: P. Deumier, « Chartes et codes de conduite des entreprises : les degrés de normativité des engagements éthiques » (Corporate Charters and Codes of Conduct: The Degrees of Normativity of Ethical Commitments), Revue trimestrielle de droit civil (RTD civ.), 2009, pp. 77-80. - ► Summary: the author starts from the circular of the French Directorate General for Labour of 19 November 2008 on ethical charters, whistleblowing schemes and internal rules. She shows that, behind ethical titles and an appearance of soft law, corporate codes of conduct mix statements of values with rules of conduct, and proposes to analyse them according to their normative content: codes that commit to nothing; codes that commit to nothing more than what the law already requires – which nevertheless spread knowledge of the law close to those concerned and may turn the company into a private legislator towards its suppliers and subcontractors; and codes that express a genuine normative power, subject to review by the courts. She concludes that the freedom to make ethical commitments does not allow a company to display commitments it does not keep. - 🦉 The article is available in full text to those registered in Professor Marie-Anne Frison-Roche’s courses.

► Full Reference: G. Loiseau, “L’intensité de l’obligation de vigilance selon les secteurs : le cas des opérateurs numériques” (The intensity of the Duty of Vigilance in different sectors: the case of digital operators), in M.-A. Frison-Roche (dir.), L’obligation de Compliance, Journal of Regulation & Compliance (JoRC) and Lefebvre-Dalloz, coll. “Régulations & Compliance“, 2025, pp. 559-569. - read the general presentation of the book, L’obligation de Compliance, in which the contribution is published - ► This article is written in French. English summary of this contribution (done by the Journal of Regulation & Compliance – JoRC): The author develops the case of digital operators. He highlights the paradox of a Law that started from a text laying down the principle that hosting providers are not liable, because of their technical neutrality, and ended up with the DSA imposing due diligence on them, but he points out that this obligation only arises once a notification has been made to the digital operator, and that there is an express prohibition of any general obligation to monitor information. Moreover, there is no general duty of vigilance incumbent on digital operators, even if recent case law seems to be tightening the role imposed on hosting providers. The Monumental Goal here is to fight against illegal content, but freedom of expression must also be preserved and regulations vary according to the type of content, whereas the DSA has a more general conception, aims at a logic of accountability and prevention of systemic risks. But wanting to make platforms “accountable” Ex Ante, without touching the liability regime Ex Post, may pose a problem. The duty of vigilance will vary depending on whether the digital operator plays a passive or active role. This may lead platforms to adopt prior measures that may constitute structural obligations, with the trusted third party taking the form of a trusted signaller. The platform is thus made responsible for its own vigilance, but despite the possibility of enhanced vigilance, this does not have to extend to investigative measures. There are, however, specific enhanced vigilance obligations for very large platforms, justified by the risks involved and the types of content (terrorism, pornography). - 🦉This article is available in full text to those registered for Professor Marie-Anne Frison-Roche’s courses -

► Full reference : M. Lancri, « La réception des alertes par l’avocat » (The Receipt of Whistleblowing Reports by the Lawyer), in M.-A. Frison-Roche and M. Boissavy (eds.), Compliance et droits de la défense. Enquête interne – CJIP – CRPC, Journal of Regulation & Compliance (JoRC) and Dalloz, coll. “Régulations & Compliance“, 2024, pp. 85-99. - ► English Summary of this article (made by the Journal of Regulation & Compliance – JoRC) : The author first recalls the entire legislative evolution, both French and European, of the whistleblowing mechanism, which is linked to the investigation process, the rights that flow from it and the technical systems that companies have set up as a result. The article then highlights the interest for everyone in entrusting to a lawyer the reports received, on the basis of which companies will launch investigations. The author stresses that the procedure for receiving reports must not be limited to a mechanical receipt but must integrate secrecy and anticipate the investigation that will follow, which a lawyer does by nature. The author insists on the fact that the lawyer will increase the guarantees of confidentiality, of the effective handling of the report and of the limitation of the risk of retaliation. More generally, she develops the idea that the lawyer helps to reassure the various persons involved.

► Full Reference: M.-A. Frison-Roche, “Appréciation du lancement d’alerte et de l’obligation de vigilance au regard de la compétitivité internationale” (“Assessment of whistleblowing and of the obligation of vigilance with regard to international competitiveness”), in M.-A. Frison-Roche (ed.), Les Buts Monumentaux de la Compliance, coll. “Régulations & Compliance“, Journal of Regulation & Compliance (JoRC) and Dalloz, 2022, pp. 413-436. - 📝read the article (in French) - 🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks - read a general presentation of the book, Les Buts Monumentaux de la Compliance, in which this article is published - ► English summary of the article (done by the Journal of Regulation & Compliance): Taking up the legal tools of Compliance and confronting them with the concern that Law must have for the Competitiveness of companies, it is necessary that these legal instruments not harm it because Compliance Law, because of its immense ambitions, can only function through an alliance between political wills with great pretensions (save the planet) and the entities which are able to achieve these goals (the crucial economic operators : the political drawing on the compagnies” power, it would be contradictory for the legal instruments put in place by Law to harm the ability of companies to face global economic competition, or worse to favor international competitors acting under legal systems which do not integrate Compliance obligations. From this principle, it is possible to assess these two legal techniques of whistleblowing and vigilance obligation: both consist in capturing Information, which gives them a strong uniqueness and fits them into the global competition for Information. Taking the whistleblowing, its first beneficiary is the company itself since the firm discovers a weakness and can therefore remedy it. Therefore, beyond the principle of protection of the whistleblower by their access to the legal statute, for instance the one conceived by the French 2016 law known as “Sapin 2”, it is questionable that all the incentives are not put in place so that the holder of such information transmits it to the manager. It is not the European solution, even after the European Directive of 2019, national legal systems continuing to require the absence of financial compensation, the “heroic figure of the whistleblower and the refusal of their remuneration depriving the company of Information and improvement. First to the manager, with external transmission taking place if the latter does nothing, the internal manager is thus encouraged to act and put an end to the dysfunction, which increases the competitiveness of the company. But the French legislation has on the contrary developed the right incentive as to the person to whom the information is transmitted because by obliging to transmit first to the manager, the external transmission intervening if the internal management does nothing, the incentive is thus made to the internal manager to act and put an end to the dysfunction, this legal solution increasing the competitiveness of the company. Even more, and even if it seems counter-intuitive, the obligation of vigilance increases the competitiveness of the obliged companies. Indeed, Law by obliging them to prevent and fight against violations of human rights and the environment has tacitly given them all the necessary powers to do so, notably the power to collect Information on third-party companies, including (and even above all) those which are not subject to transparency obligations. In this respect, companies, as far as they are personally responsible, hold supervisory power over others, a power which allows to globalize Compliance Law and which, in the process, increases the Companies’ own power. Therefore, the obligation of vigilance is in many respects a boon for the companies which are subject to it. The resumption of the mechanism by the next European Directive, itself indifferent to the territory, will only strengthen this global power of vigilant companies over possibly foreign companies which become its passive subjects. - 🌐 follow Marie-Anne Frison-Roche on LinkedIn 🌐follow Marie-Anne Frison-Roche on Instagram 🌐 subscribe to the Newsletter MAFR Regulation, Compliance, Law 

► Full Reference: Siproudhis, J.-B.,, C.,  Le transfert de responsabilité du régulateur et du juge vers l’entreprise : la démonstration par le système d’alerte ("The transfer of responsibility from the regulator and the judge to the company: demonstration by the whistleblowing mechanism"), in Frison-Roche, M.-A. (dir.), La juridictionnalisation de la Compliance, série "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) et Dalloz, à paraître.  -   ► Article Summary (done by the Author) : From the practitioner perspective, compliance is geared towards a gradual transfer of responsibilities from both regulators and judges.   In France, the whistleblowing mechanism imposed by the so-called "Sapin 2" and "Duty of Vigilance" laws illustrates this evolution. Indeed,  internal alerts management follows key judiciary process milestones : admissibility, investigations, dismissal or sanction. This turns corporations duties into prosecutors or judges’, provided that they respect a specific framework contributing to respect the rules of a fair trial. This requirement raises several legal and sociological challenges to which the author devotes his developments. -   📝 go to the general presentation of the book in which this article is published. -     This requirement raises several legal and sociological challenges to which the author devotes his developments.    

► Full Reference: Siproudhis, J.-B.,, C., The transfer of responsibility from the regulator and the judge to the company: demonstration by the whistleblowing mechanism, in Frison-Roche, M.-A. (ed.), Compliance Jurisdictionalisation, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.  -   ► Article summary (done by the author) : From the practitioner perspective, compliance is geared towards a gradual transfer of responsibilities from both regulators and judges.   In France, the whistleblowing mechanism imposed by the so-called "Sapin 2" and "Duty of Vigilance" laws illustrates this evolution. Indeed,  internal alerts management follows key judiciary process milestones : admissibility, investigations, dismissal or sanction. This turns corporations duties into prosecutors or judges’, provided that they respect a specific framework contributing to respect the rules of a fair trial. This requirement raises several legal and sociological challenges to which the author devotes his developments. -   📝 to the general presentation of the book in which this article is published