The decision to open an internal investigation follows no uniform rule. It rests on legal obligations, which do bind every organisation, and on circumstances that are never alike: the nature of the alleged facts, whether criminal proceedings are already under way, the presence of evidence or individuals abroad, and the position held by those concerned. This first part sets out the framework within which that decision is taken, not the course to follow in any given matter.
The triggers
The starting point is rarely a certainty. The information most often comes through the internal whistleblowing channel, which entities of fifty employees or more have been required to operate since Law no. 2016-1691 of 9 December 2016, known as the Sapin II Act, as amended by Law no. 2022-401 of 21 March 2022. It may also arise from a report up the management line or from an anomaly identified by internal control or by the statutory auditors. It sometimes comes from outside, whether through a production order revealing that an authority is already looking into the matter, a question put by a client as part of its third-party due diligence, or a press report.
The channel through which the information arrives says nothing about its seriousness. The question is not who is speaking, but whether what is alleged can be verified and what exposure it creates for the organisation, an assessment that presupposes a legal characterisation of the facts.
What the law requires of the employer
The employer owes a duty to ensure health and safety under article L. 4121-1 of the French Labour Code, and a specific duty of prevention in respect of harassment under articles L. 1152-4 and L. 1153-5 of the same code. In 2019 the Social Chamber of the Cour de cassation held that an employer who carries out no verification following a report breaches its duty of prevention, that duty being distinct from the prohibition of the conduct itself, and the breach being capable of being established even where the reported facts are not made out. It qualified that position in June 2024: the absence of an investigation does not in itself constitute a breach where the employer establishes that it took sufficient measures to protect the employee’s health and safety. The burden of that proof lies with the employer.
What follows is less an obligation to investigate in every case than an obligation to respond, of which an investigation is one possible form, and whose extent is assessed in the light of the facts reported.
A whistleblower’s report carries its own time limits: acknowledgement of receipt within seven working days, then feedback to the reporting person within a reasonable period not exceeding three months from that acknowledgement or, failing acknowledgement, from the expiry of the seven working days following the report, under article 4 of Decree no. 2022-1284 of 3 October 2022.
Scope, and putting it in writing
Opening an investigation requires determining what it covers: the facts, the individuals, the period and the entities concerned, including, where applicable, foreign subsidiaries. That scope governs everything that follows. An investigation which extends along the way to facts or individuals it was never intended to examine weakens what it produces, both in disciplinary terms and with a view to any later proceedings.
Whether to record that scope in writing carries advantages and risks that can only be weighed case by case. A written record supports the seriousness of the exercise before a court, an inspector from the French Anti-Corruption Agency or a public prosecutor. But any document drafted by the company may be seized during a search of its premises and may then form part of a case file, with whatever characterisation the investigators choose to give it. Where the alleged facts are capable of attracting criminal characterisation, whether to write, what to write and who is to write it are strategic decisions taken with a lawyer, before the first document exists.
The timetable is set from outside
Two limitation periods run, and they differ in both length and starting point. The disciplinary limitation period under article L. 1332-4 of the French Labour Code is two months from the day the employer became aware of the misconduct, the case law fixing that day as the one on which the employer acquired precise knowledge of the reality, nature and extent of the facts. Conducting an investigation does not automatically postpone that starting point: the employer must establish that the verifications were necessary in order to acquire that knowledge. Where dismissal for gross misconduct (faute grave) is contemplated, a further and distinct requirement applies, namely that proceedings be commenced within a short period. The limitation period for criminal prosecution is six years for an offence classified as a délit under article 8 of the French Code of Criminal Procedure, subject to the deferred starting point applicable to concealed or disguised offences under article 9-1.
These time limits explain why the question of opening an investigation arises within days of the facts becoming known, and rarely later without consequence.
What cannot be promised
An organisation receiving a report may arrange for confidentiality, that is, restrict access to the information. It cannot guarantee anonymity, either for the reporting person or for those interviewed: a report may be produced in court or seized, and the identity of those concerned may have to be disclosed. An assurance given beyond what the law allows exposes the organisation as much as it exposes those to whom it was given.
The role of the lawyer
None of these questions has an answer valid for every matter. The legal characterisation of the alleged facts governs the rest: it determines the extent of the verifications that will serve a purpose, the appropriate degree of formality, the criminal exposure of the organisation and its officers, and whether the facts, if established, call for a report to the authorities. A suspicion of bribery of a foreign public official and a management dispute call for neither the same steps nor the same timetable.
That is why a lawyer is usefully instructed when the question of opening arises, rather than once the report has been written. Advice given by a lawyer and correspondence exchanged with that lawyer are covered by professional secrecy (secret professionnel) under article 66-5 of the Law of 31 December 1971, a protection which no document produced by the company alone enjoys. It is not absolute: article 56-1-2 of the French Code of Criminal Procedure, introduced by Law no. 2021-1729 of 22 December 2021, sets aside the secrecy attaching to legal advice in respect of investigative measures concerning tax fraud, bribery, influence peddling, terrorist financing and the laundering of those offences. An investigation run for several weeks without that preliminary analysis reaches the lawyer’s desk with its choices already made, some of them irreversible.
This episode opens the guide Conducting an Internal Investigation. The next, Episode 2: Who should conduct the internal investigation, deals with the choice between an internal team, a lawyer and an independent third party. This material sets out the general legal framework and does not constitute legal advice.