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Procedure for the internal management of Public Interest Disclosures issued by whistle-blowers within IFSTTAR, under the Sapin II Act of 9 December 2016
Applicable legislation:
- Act No. 83-634 of 13 July 1983 on the rights and obligations of civil servants, article 6 ter A thereof
- Act No. 2016-1691 of 9 December 2016 on transparency, the prevention of corruption and the modernisation of economic life, articles 6 to 10 thereof
- Decree No. 2017-564 of 19 April 2017 on the procedures for dealing with Public Interest Disclosures issued by whistle-blowers within legal entities governed by public or private law or State administrations
- Circular of 19 July 2018 on the procedure for dealing with Public Interest Disclosures issued by public officials under articles 6 to 15 of Act No. 2016-1691 of 9 December 2016 on transparency, the prevention of corruption and the modernisation of economic life, and the guarantees and protections granted to them in the civil service
- For information, the July 2017 Guide for Human Rights Defenders, entitled Guidance and Protection of Whistle-blowers
Preamble :
The law of 9 December 2016, known as the "Sapin 2 Act", provides protection for individuals making public information disclosures, also known as whistle-blowers.
Article 6 ter A of Act No. 83-634 of 13 July 1983 stipulates that "no civil servant may be punished or subjected to any discriminatory measure, directly or indirectly, for having made a public interest disclosure in accordance with articles 6 to 8 of Act No. 2016-1691 of 9 December 2016 on transparency, the prevention of corruption and the modernisation of economic life".
The following procedure also covers the principle of confidentiality of public interest disclosures.
Champ d’application de la procédure :
1. Acts and incidents that may be reporteds
The acts the whistle-blower reports must have been committed by IFSTTAR or one of its operatives.
They must appear to constitute:
- A crime or misdemeanour
- A serious and flagrant violation:
- of the law or a regulation
- of an international commitment duly ratified or approved by France
- of a unilateral act of an international organization taken on the basis of an international commitment duly ratified or approved by France
- Of a threat or serious prejudice to the general interest
The events, acts, threats or prejudices that may be the subject of a public interest disclosure report must be of signal gravity: the violation must be serious and flagrant (i.e. based on facts whose reality is difficult to dispute), and in addition the threat or prejudice must have serious consequences for the general interest.
Examples: embezzlement; corruption or influence peddling; conflict of interest or illegal graft and corruption; activities that endanger human life or public health.
All the incidents and evidence reported by the whistle-blower will be assessed when the validity of the alert is examined by the Public Interest Disclosure Officer.
Acts excluded from the mechanism
Facts, information or documents, whatever their form or medium, shall be excluded from the disclosure process if they are covered by national defence secrecy, medical secrecy or the secrecy of the relations between lawyers and their clients.
2. The following persons may act as a whistle-blower
- For the purposes of this procedure, the following are considered to be whistle-blowers: Any individual, IFSTTAR officer (permanent or probationary officials, contract employees under public or private law) or external and occasional IFSTTAR employee in a professional context (trainee, apprentice, CIFRE doctoral student or a hosted contractual partner, service provider, etc.)
- who has personal knowledge of facts that appear to be reportable
- who is disinterested and acting in good faith
3. Procedures for making a public interest disclosure report
a) The different levels of procedure
The procedure for processing the report is divided into several levels:
The first level of the procedure consists of the internal report, which is that described here, it being understood that the majority of public interest disclosures should be processed at this stage.
The second level of the procedure is the external report: if no action is taken with regard to the report within a "reasonable amount of time" after it is issued, the whistle-blower may contact the competent authorities directly. The competent authorities are understood to be either the judicial authorities, the administrative authorities or professional orders.
Finally, the third level of the procedure is public disclosure: it is a last resort which is only available if the external authorities have not dealt with the report within three months.
This three-step procedure is not mandatory in the event of serious and imminent danger or in the presence of a risk of irreversible harm. In one of these two cases, the report shall be brought directly to the attention of the competent external authorities and may, at the same time, be made public.
b) Recipient of the internal report
The whistle-blower should contact:
if the report targets an IFSTTAR officer: either the latter's hierarchical superior or the ethics adviser (Eric GELINEAU, Head of Legal Affairs and IFSTTAR Authorities), who acts as IFSTTAR’s public interest disclosure officer, in accordance with Article 4 of the Decree of 19 April 2017.
If the whistle-blower chooses to contact the supervisor of the staff member concerned, the latter must promptly inform public interest disclosure officer.
if it targets IFSTTAR: the ethics adviser (Eric GELINEAU, Head of Legal Affairs and IFSTTAR Bodies), who acts as IFFSTAR’s Public Interest Disclosure Officer, in accordance with Article 4 of the Decree of 19 April 2017.
The Public Interest Disclosure Officer can be contacted:
By e-mail, at the following address: : referent-alerte(at)ifsttar.fr
By letter, marked “personal and confidential” sent to the address below:
IFSTTAR
A l’attention d’Eric GELINEAU
Cité des mobilités
25, Avenue François Mitterrand
69675 BRON Cedex
In principle, a public interest disclosure cannot be anonymous because it should facilitate interaction between the whistle-blower and the recipient. It must therefore give the whistle-blower's contact details so that, if necessary, the Public Interest Disclosure Officer can engage in discussion with the whistle-blower and supplement the report.
However, exceptionally, if the whistle-blower wishes to remain anonymous, the disclosure may be dealt with, provided that the gravity of the facts has been demonstrated and that the whistle-blower provides sufficiently detailed factual information. It will then be up to the recipient of the report to assess whether or not it is appropriate to apply the procedure to the report.
c) Content of the insider report
The content of the report is decisive for the pursuit of the procedure. The whistle-blower is the first person to judge the facts in question; it is therefore up to them to assess their gravity. It is important for the whistle-blower to be as accurate as possible when making a report, and that it should be accompanied by any document, facts, information or evidence in their possession. In addition, it is desirable, in order to remove any ambiguity, for the whistle-blower to clearly specify how they became aware of the situation requiring a report or how they obtained the relevant documents, information or other evidence. These details will make it possible to justify the whistle-blower's good faith and to approve or reject the report as appropriate.
d) Confidentiality and outcome of an insider report
The status of whistle-blower guarantees the strict confidentiality for the author of the report, the reported facts and the targeted individuals, as well as the interactions between the whistle-blower and the Public Information Disclosure Officer..
It is the responsibility of the Public Information Disclosure Officer to conduct the investigation. At the end of the investigation, a comprehensive dossier will be sent to the Managing Director who will decide on what action to take. If necessary, the dossier may also be forwarded to the competent judicial authority.
Information identifying the whistle-blower may not be disclosed, except to the judicial authority, without their consent.
Information that may be used to identify the person who has been targeted by an allegation may not be disclosed, except to the judicial authority, until the report has been recognised as justified.
Upon receipt of the report, the public interest disclosure officer will tell the whistle-blower how and when they will be informed of the resulting action taken.
Once the report has been dealt with, or if it is not considered to fall within the scope of the procedure, the data relating to it will be deleted or filed after it has been made completely anonymous. All this will be done within two months of the completion of the checks. All persons concerned by the public interest disclosure will then be informed of this completion.
4. Whistle-blower protection
The whistle-blower benefits from special protection against disciplinary measures, as stated in article 6 ter A of the 13 July 1983 Act: "No measure concerning, in particular, recruitment, tenure, remuneration, training, evaluation, performance appraisal, discipline, promotion, assignment and transfer may be taken with regard to an official for having, in good faith, reported or made known to the judicial or administrative authorities facts constituting a criminal offence or which may be deemed a conflict of interest as defined in article 25 bis, which they learned about in the exercise of their duties. No civil servant may be punished or subjected to any discriminatory measure, directly or indirectly, for having made a public interest disclosure in accordance with articles 6 to 8 of Act No. 2016-1691 of 9 December 2016 on transparency, the prevention of corruption and the modernisation of economic life".
In addition, the person making the Public Interest Disclosure report shall not be criminally liable if they infringe a legally protected professional secret if such disclosure is necessary and proportionate in terms of the protection of the interests in question and if the allegation was made in accordance with the Public Interest Disclosure reporting procedure.
These protections only apply if the report was made in good faith. Among other categories of criminal offence for which the person who makes a public interest disclosure could be prosecuted, Article 226-10 of the Criminal Code imposes penalties on a person who makes a slanderous allegation or false statement. This offence is punishable by up to five years' imprisonment and a fine of €45,000.
In addition, in the event of an improper allegation, the whistle-blower loses all the previously mentioned protections granted by Article 6 ter A of the Law of 13 July 1983.
5. Guarantees for the member of staff targeted by the allegation
First of all, the targeted member of staff benefits from the same confidentiality guarantees as the whistle-blower. As a reminder, information likely to identify them may not be disclosed, except to the judicial authority, until the justification of the report has been established.
If the report is unfounded or the targeted member of staff deems that they have been the victim of a threat, slanderous denunciation or attack on their integrity, they are protected by Article 11 of the 13 July 1983 Act as long as they cannot be considered guilty of any personal misconduct.
Finally, the employee against whom the allegation was made may request that their legal costs be borne by the functional protection provided for in Article 11 of the Act of 13 July 1983 if the public interest disclosure incurs legal costs.
