By Pascale Gelly

Dassault Systemes challenged a 2007 first instance decision before the Court of Appeal for having considered void the whistleblowing provisions of its code of business conduct. A trade union had indeed sued the company about the content and the implementation of its code of conduct on several grounds, considering, in particular, that the whistleblowing provisions violated the Data Protection Act and the rights of employee representatives. To understand this last ground, one must know that employee representatives in France may actually fear that these alerts systems diminish their role, as under French labor law, employee reps have a mission to  convey employees concerns and claims. Still, on the basis of freedom of speech, the Court of Appeal of Versailles considered that this mission does not preclude employees to bring their concerns directly to the employer. The whistleblowing system is then just another route for alerts.

The Court also analyzed the whstleblowing provisions in light of the CNIL authorization decision. It held that the scope of the alert system was in line with the CNIL authorization document (so-called "autorisation unique"). The system had the usual two-level scope: main scope for financial/accounting fraud and bribery and secondary scope in case of serious misconduct which could impact the vital interest of the group or the physical or moral integrity of an individual (such as "infringement of intellectual property rights, disclosure of strictly confidential information, conflicts of interest, insider trading, discrimination, and moral/sexual
harassment offences").

The Court also did not follow the trade union, which claimed that the company code of conduct should have reproduced the content of the CNIL "autorisation unique." The Court considered the code as satisfactory insofar as it stated the main principles of the "autorisation unique:"

• an optional system;

• a precise scope;

• the tools implemented;

• the fact that anonymous alerts were not encouraged;

• confidentiality of whistleblowers;

• the fact that investigations and decisions would be made in compliance with applicable regulation including compliance with the right of access and rectification of the suspected employees.

The trade union claim was therefore dismissed on this ground and the earlier judgement overruled.