May 28, 2020

Publications

Full reference: Frison-Roche, M.-A., L'impossible unicité juridique de la catégorie des "lanceurs d'alertes" ("The impossible legal unicity of the category of "whistleblowers""), in Chacornac, J. (dir.), Lanceurs d'alertes, regards comparatistes, ("Whistleblowers, comparative perspectives"), Publications of the Centre français de droit comparé ("French Comparative Law Center"), May 2020, Volume 21, p.13-31. 

 

Read the article (in French).   

Read the general presentation of the collective book in which this article is published

Read the bilingual working paper which had served of basis for this article. 

Read the presentation of the conference "Les lanceurs d'alertes: glose" (Whistleblowers: glose") and especially the slides elabored for the colloquium organized by the Centre français de droit comparé ("French Comparative Law Center") on 23th of November 2018 under the direction of Jérôme Chacornac

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Introduction of the article

"Whistleblowers". This is a new expression. Which is a great success. Barely heard once, we hear it everywhere ...

A topic not of course or knowledge test, but rather a topic of daily conversation. Because it is spoken to us every day, in more or less gracious terms. For example President Donald Trump on October 1, 2019 declared to the press "want to question" the whistleblower who would have illegally denounced him and would not, according to him, have the right to conceal his identity, proof in this according to him of the lying character of his assertions against him, while his lawyer indicates on October 6, 2019 that he is not speaking on behalf of a single whistleblower thus taken to task but of a plurality of people who gave information against the President of the United States. Even the most imaginative screenwriters would not have written such brutal and rapid twists and turns. Spectators, we are waiting for the next episode, secretly hoping for the escalation.

And precisely if we go to the cinema, it is still a whistleblower whose dedication and success, we are told about, even the drama, for the benefit of global society, and in particular democracy, since the secrets are fought for the benefit of the truth. The Secret Man designates Mark Felt as the first whistleblower. Returning to what we often present as being a more "serious" media!footnote-1391, we listen to France-Culture and here is another story told by a historian who worked as an archivist on events that political power would have liked to keep hidden by possibly destroying their traces but which its trade led to preserve: here it is expressly presented to the studious listeners like a "whistleblower" .... While the same radio tries to find the one who could well be, as in a kind of contest the "first whistleblower"!footnote-1727? .... This rewriting of History can be defended because ultimately what did other Voltaire do for Calas, or Zola for Dreyfus?

It is also a subject of legislative discussion since in the United States the Dodd-Frank law of 2010 inserted in the law of 1934 which established the Securities & Exchanges Commission a complete device of remuneration and remuneration of the whistleblowers, whereas after having developed flexible but guiding lines in this regard in 2012!footnote-1698, the European Commission published on November 20, 2018 the text of what will become a Directive intended to give a unified European status to the character, in the system gradually developed to protect the one who was presented in 2018 as that "cannot be punished for having done what is right".

In Europe, the Directive first approved by a Resolution of the European Parliament on April 16, 2019 on the protection of persons denouncing breaches of Union Law and then adopted on October 7, 2019 (Directive of the European Parliament and of the Council of European Union on the Protection of Persons who Report Violations of European Union Law, different title, it should be noted, will have to be transposed into the laws of the Member States within the next two years. , since only "violations of Union Law" are targeted, but the character of the "whistleblower" is more generally targeted: he is "whole"!footnote-1699.

In short, the whistleblower is a star!footnote-1390. A sort of historical figure, covered in blows and glory, going from Voltaire to Snowden, both of whom find themselves embodied on the screens!footnote-1681 ....,

Consecrated by law, which associates with it a legal regime of protection to such an extent that, like a Nessus tunic, it is this legal regime which will define the character and not the reverse. When we read the law of December 9, 2016 relating to transparency in the fight against corruption and the modernization of economic life, known as "Sapin 2", we notice that the Legislator makes much of this character, since 'he dedicates its chapter II to him!footnote-1682: "From the protection of whistleblowers", and that it is by his very protection that he formally opens the door of Right to him.

But why a plural? Admittedly when we read the recitals of the Community Directive of October 7, 2019 on the protection of whistleblowers!footnote-1702, it is only a list of all the subjects on which it is a good idea to protect them, which therefore prompts us to see in this plural only the index of this non-exhaustive list of subjects which it is good to tell us, a sign of the lack of definition of who should alert us. Reading the French law known as "Sapin 2" makes it less severe but more perplexing. Indeed, this plurality referred to by the title of the chapter devoted to "whistleblowers", there is no longer any question in the rest of the law, in the very definition which follows, article 6 which opens this chapter devoted to "whistleblowers" offering the reader immediately a singular since it begins as follows: "A!footnote-1684 whistleblower is a person ...". No mention of diversity. The art of legislative writing would however have required that the qualifying article not only be singular but that it should not yet be undefined. Stendhal if he had still deigned to have the law for bedside book would have wanted to find at the beginning of chapter a sentence like: "The!footnote-1683 whistleblower is a person ...".

Thus seem to contradict themselves within the law "Sapin 2 the very title which presents the character, in that it uses a defined plural (the) while the defining article which presents it is in the undefined singular (one). ...

Here is a first reason not to advance any more but in a very careful way, in this "step by step" that constitutes a reading word for word: a gloss. This consists of taking the expression itself literally. The second reason for this technical choice is that the gloss is well suited to the introduction of a collective work, thus allowing more targeted developments to take place in other contributions, on the techniques, the difficulties and the limits of this protection, or on its history, or the reasons for the arrival in French law of these whistleblowers and the way they develop, or not, elsewhere.

I am therefore going to content myself with taking this already legal expression to the letter: The (I) whistle (III). blowers (II). 

 

 

 

Updated: Oct. 8, 2019 (Initial publication: Nov. 22, 2018)

Publications

This working paper served as a basis for a conference done in French for the Centre de droit comparé (Center for Comparative Law) in Paris on 23 November 2018.

Updated, it has served as a basis for an article published in French in a book of the Société de Législation comparé (Society of Comparative Legislation).

 

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"The whistleblowers". This is a new expression. Which wins a full success. Barely heard once, we hear it everywhere ...

A theme not only of academic teaching, but rather a topic of daily conversation. Because it is every day that we speak about it, in terms more or less graceful. For example President Donald Trump on October 1, 2019 told the press he "wants to interrogate" the whistleblower who would have unlawfully denounced him and would not have, according to him, the right to conceal his own identity, evidence in this according Donald Trump of the false character of his assertions against him, while his lawyer indicates on October 6, 2019 that he does not speak on behalf of a single whistleblower thus taken apart but of a plurality people who gave information against the President of the United States. Even the most imaginative scriptwriters would not have written twists as abruptly or so fast. Spectators, we wait for the next episode, secretly hoping for climbs and slashs.

Precisely if we go to the cinema, it is still a whistleblower whose dedication and success, or even drama, we are told, for the benefit of the global society, and especially of Democracy, since the secrets are fought for the benefit of the truth. Thus, the movie The Secret Man designates Mark Felt as the first whistleblower. Returning to what is often presented as a more "serious" media, for example in France the radio "France Culture" we can learn the story of a historian who worked as an archivist on events that the political power would have wanted to keep hidden by possibly destroying their traces but that his profession led to preserve!footnote-1391: here it is expressly presented to the studious listeners as a "whistleblower" ... While the same radio is trying to find the one that could be, as in a kind of contest, the "first whistleblowers"!footnote-1727?. This rewriting of History can be made because finally Voltaire for Calas, or Zola for Dreyfus did they anything else? 

It is also a topic of legislative debate since in the United States the Dodd-Frank Act of 2010 inserted in the 1934 law that established the Securities & Exchanges Commission (SEC) a complete system for retribution and remuneration of whistleblowers, while after elaborating guidelines about about in 2012!footnote-1698, the European Commission has published the text on November 20, 2018 in order to give the character a unified European status, in the device gradually developed to protect the one that was presented in 2018 as who  like that : ""The new whistleblowers' protection rules will be a game changer. In the globalised world where the temptation to maximise profit sometimes at the expense of the law is real we need to support people who are ready to take the risk to uncover serious violations of EU law. We owe it to the honest people of Europe.". Step for the Directive of October 7, 2019. 

In Europe, the Directive first approved by a Resolution of the European Parliament on 16 April 2019 on protection of persons reporting breaches of Union law and then adopted on 7 October 2019 (Directive 2019/78 (EU) of the European Parliament European Union and the Council of the European Union on the Protection of Persons Reporting Breaches of Union law, will have to be transposed in the next two years to the legal systems of the Member States. is not general, since only "violations of European Union Law" are targeted but the character of the "whistleblower" is more generally referred to: it is "whole"!footnote-1699.

In short, the whistleblower is a star !footnote-1390. A kind of historical character, covered with blows and glory, going from Voltaire to Snowden, one as the other being incarnated on the screens!footnote-1681 ....

Recognized by national legislations, which associate to him a legal regime of protection to such a point that, like a tunic of Nessus, it is this legal regime which will define his character and not the opposite. When we read the French law of December 9, 2016 relative à la transparence à la lutte contre la corruption et à la modernisation de la vie économique (on transparency in the fight against corruption and the modernization of economic life), usually known as "Sapin 2 Act", we note that the lawmaker makes much of this character, because he devotes to him the chapter II: "De la protection des!footnote-1682 lanceurs d'alerte" ("The protection of!footnote-1682 whistle-blowers") and that it is by his very protection that the French Parliament formally opens the door of Law to him and throws it openly.

But why a plural? Certainly when we read the recitals of the European Directive of 7 October 2019 on the protection of whistleblowers!footnote-1702, this is only an enumeration of all the subjects about which it is a good idea to to protect them, which encourages us to see in this plural only the index of this non-exhaustive list of topics about which it is good that we are alerted, sign of the lack of definition ... Reading the French law known as "Sapin 2" makes us less severe but more perplex. Indeed, from this plurality covered by the title of the chapter devoted to Les lanceurs d'alerte ("The whistleblowers"), there is no longer any question in the rest of the law, in the very definition that follows, Article 6 which opens this chapter devoted the "whistleblowers" offering the player immediately a singular since it begins as follows:  "Un!footnote-1684 lanceur d'alerte est une personne ..." (A! footnote-1684 whistleblower is a person ..."). No more mention of diversity. The art of legislative writing would have even required that the qualifying article should not be singular but not yet indefinite. 

Thus seem to contradict in this law "Sapin 2" itself the very title which presents the character, in that it uses a definite plural ("the whistleblowers") while the article of definition which presents the topic does it by using the singular indefinite : "a whistleblower....".

This is a first reason to move forward only in a very cautious way, in this "step by step" that constitutes a word-by-word reading: a gloss. This method consists in taking literally the expression itself. The second reason for this technical choice is that the gloss is well suited to an introduction of a collective work, allowing more specific developments to take place in other contributions, for example on the techniques, the difficulties and the limits of this protection, or the history of it, or the reasons for the arrival in French law of these American or Brithish whistleblowers and the way they develop, or not, in other legal systems or other countries.

I will therefore content myself with taking again literally this already legal expression: The (I) launchers (II) of alert (III).

See below developments.

 

1

On the more general fact that cinema is undoubtedly the medium which most seriously restores the state of the Law, c. Frison-Roche, M.-A., Au coeur du Droit, du cinéma et de la famille : la vie, 2016.

2

L'histoire du premier lanceur d'alerte, France Culture, septembre 2019. 

4

However, precisely the so common use of plurality ("whistleblowers") raises doubts about the uniqueness of the character. On this question, see. all the first part of the developments of this study, which leads to the conclusion rather than beyond the multitude of particular cases, there are rather two kinds of whistleblowers. V. infra I.

6

Thus, the adventures of Snowden were brought to the screen by Oliver Stone in 2016, Snowden. On the question of knowing whether this film "faithfully reproduces" or not the case, Schetizer, P., Le film Snowden est-il à la hauteur de la réalité?, 2017. This article is favorable to the whistleblower, and to the film which tells us with emotion his case, in particular because (sic), it is easier than to read the Washington Post.

7

Underlined by us.

8

Underlined by us.

9

About this directive, v. the developments infra

10

Underlined by us.

April 25, 2019

Thesaurus : Doctrine

Full reference : Ayed,W., Verdun,F., La fonction conformité anticorruption dans l’organisation selon l’Agence française anticorruption, in La semaine juridique, Entreprises et Affaires, JCP, ELexisNexis, n°17-18/1206, 25 avril 2019, pp.38-44.

 

 

Sciences Po students can read the article via the drive, folder  "MAFR - Régulation - Compliance"

July 3, 2018

Thesaurus : Doctrine

Référence complète : Malabat, V., et Auzero, G., Les lanceurs d'alerte, in Études en l'honneur de Philippe Neau-Leduc, Le juriste dans la cité, coll. « Les mélanges », LGDJ- Lextenso,  2018, pp.673-684.

 

 

Lire une présentation générale dans lequel l'article est publié.

July 3, 2018

Thesaurus : Doctrine

Référence complète : Couret, A., Le retour de l'unanimité dans le droit des sociétés, in Études en l'honneur de Philippe Neau-Leduc, Le juriste dans la cité, coll. « Les mélanges », LGDJ- Lextenso,  2018, pp.279-286.

 

 

Lire une présentation générale dans lequel l'article est publié.

April 11, 2018

Teachings : Droit de la régulation bancaire et financière, semestre de printemps 2017-2018

March 1, 2018

Thesaurus : Doctrine

Référence complète : Dedieu, D., et Gallois-Cochet, D., Obligations et responsabilité des dirigeants dans le cadre des exigences de compliance en droit français, in Bulletin Joly Sociétés, Lextenso, n°3, mars 2018, pp.173-184.

 

 

L'étude appréhende les dispositifs de compliance résultant des lois Sapin 2 et Vigilance sous l'angle des dirigeants de sociétés. Elle examine l'identité des dirigeants responsables de ces deux dispositifs et la nature des obligations préventives leur incombant personnellement. Elle analyse enfin les sanctions, tant répressives qu'au titre de leur responsabilité civile personnelle, encourues par ces dirigeants ès qualité pour tout manquement à ces dispositifs préventifs.

 

 

 

Les étudiants de Sciences-Po peuvent consulter l'article via le Drive, dossier "MAFR - Regulation & Compliance".

Dec. 7, 2017

Interviews

Référence complète : FRISON-ROCHE, M.-A., Il faut construire un dispositif européen de compliance, voilà l'avenir !, in Actualité/Entretien, Petites Affiches, propos recueillis par Olivia DUFOUR, n° 244, 7 déc. 2017, pp. 4-6.

 

Entretien donné à propos de la sortie de l'ouvrage Régulation, Supervision, Compliance.

Réponse aux questions suivantes :

  • Quels sont les buts que vous assignez à la Compliance ?

 

  • Que signifient ces deux concepts que vous introduisez : service public mondial et buts monumentaux ?

 

  • Que devient l’État face à une entreprise globale ?

 

  • Que pensez-vous du lanceur d'alerte ?

 

  • Comment est affectée la relation entre l'Europe et les États-Unis ?

 

  • Par la Compliance, les entreprises ne vont-elles pas gouverner le monde ?

 

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Lire l'entretien.

Nov. 21, 2016

Thesaurus : Doctrine

Référence complète : Thiébart, P., Le lanceur d'alerte à la lumière de la loi Sapin 2,  in La Semaine Sociale Lamy, n°1745, 2016, 7 p.