Working papers
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). - "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 preserve1On 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.: 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"2L'histoire du premier lanceur d'alerte, France Culture, septembre 2019. ?. 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 20123European Commission, Guidelines on Whistleblowing, 6 of December 2012, SEC(2012) 679 final, updated on 23 of April 2018. , 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"4However, 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.. In short, the whistleblower is a star 5The director of the film La fille de Brest says that she considers the whistleblower at the origin of the case of the Pick as a "movie character".. A kind of historical character, covered with blows and glory, going from Voltaire to Snowden, one as the other being incarnated on the screens6Thus, 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. …. 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 des7Underlined by us. lanceurs d'alerte" ("The protection of7Underlined by us. 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 whistleblowers8About this directive, v. the developments infra, 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: "Un9Underlined by us. 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.
