New obligations to protect whistleblowers

The “Law on the protection of persons who report violations of Union or national law found within a legal entity in the private sector” was published in the Be lgian Official Gazette of 15 December 2022. This law transposes the European directive on whistleblowers into Belgian law, and aims to protect whistleblowers.

What is it about?

A whistleblower is a person who reports breaches of certain laws that occur in a professional context.

Whistleblowers can be not only employees, but also trainees, volunteers, former or future employees, directors, shareholders, or (agents of) independent service providers/suppliers/subcontractors.

More specifically, breaches with regard to the following laws may be reported: (i) public procurement; (ii) financial services, products and markets, and prevention of money laundering and terrorist financing; (iii) product safety and compliance; iv) transport safety; v) protection of the environment; vi) radiation protection and nuclear safety; vii) food and feed safety, animal health and welfare; viii) public health; ix) consumer protection; (x) protection of privacy and personal data, and security of network and information systems; xi) counter tax fraud; xii) counter social fraud; xiii) breaches affecting the financial interests of the European Union; xiv) breaches relating to the European internal market.

The new legislation introduces the obligation to establish reporting channels so that the above-mentioned breaches can be detected and dealt with within enterprises, and that appropriate protection is given to whistleblowers who have reported such breaches.

Internal and external reporting channels

Only enterprises having 50 or more workers[1] must establish an internal reporting channel and keep a record of reports received. The enterprise can choose to manage this reporting channel internally or, if it wishes, to outsource it to an external partner. 

The internal reporting channel must allow whistleblowers to report their concerns in writing or verbally. The reporting channel must comply with a number of formalities guaranteeing, among other things, confidentiality and impartial treatment of reports, and must be accessible at least to the enterprise's own workers, but also to external parties (self-employed, shareholders, workers who are no longer in service, subcontractors).

For enterprises with at least 250 workers, this internal reporting channel must provide for the possibility of completely anonymous reporting.

Enterprises choose how this reporting channel is implemented in practice. Reports can be made, for example, by e-mail, by phone, by means of a tool...

In addition, whistleblowers will also have access to an external reporting channel. A “Reporting Authority” will be designated for this purpose. This authority will be responsible for receiving reports, providing feedback and following up on reports.

Finally, whistleblowers will also have the possibility, under certain conditions, to make information public.

Introduction of an internal reporting channel

The law does not specify how the internal reporting channel should be introduced. Therefore, each enterprise has the choice to do so through a company collective labour agreement, work rules or a simple policy. In all cases, social dialogue must be observed in the process.

As well the workers of the enterprise as the external parties/third parties must be provided with clear and accessible information about available reporting channels.

Whistleblower protection

Whistleblowers will be protected against retaliation in the broadest sense (dismissal, demotion, failure to renew the contract, disciplinary sanctions, etc.). The protection measures will also apply to all those who are related to the whistleblowers and are likely to become victims of retaliation in the professional context (e.g. family members who assist the whistleblowers).

However, to enjoy this protection, the whistleblower will have to be able to prove that at the time of reporting, he had reasonable grounds to believe that the matters reported were true, and that these matters fell within the scope of the relevant law.

For its part, the enterprise will have to be able to prove that each measure taken is unrelated to the report. If the enterprise fails to meet this burden of proof, the victim of the measure who is a worker of the enterprise will be entitled to compensation of between eighteen and twenty-six weeks' pay[2]. If the victim of the retaliatory measure is not a worker, the actual extent of the disadvantage suffered must be proven.

Sanctions

An enterprise that fails to comply with its obligations (i.e. fails to set up a channel or obstructs its proper functioning, retaliates or fails to respect the confidentiality of whistleblowers) will be subject to a level 4 sanction under the Social Criminal Code (either administrative fines of EUR 2,400 to EUR 24,000 or criminal sanctions (fines of EUR 4,800 to EUR 48,000 and/or imprisonment of six months to three years)).

The actions of persons abusing the channel and knowingly disseminating false information will fall under the offenses of defamation and slander, which are punishable by up to one year in prison.

Entry into force

The law will take effect on 15 February 2023.

Enterprises with more than 250 workers must be ready to comply with the new legal provisions by 15 February 2023! Enterprises active in the financial sector or in the prevention of money laundering and terrorist financing must meet the date of 15 February 2023 in all cases, regardless of the number of workers they employ.

Regarding the internal reporting channel, enterprises with 50 to 249 workers have until 17 December 2023 to implement it.

Are you a Partena Professional customer?

If you have any questions about the new whistleblower regulations, or if you would like advice on your enterprise's specific obligations, please contact our Legal Partners at legalpartners@partena.be.

Sources:

- EU Directive 2019/1937 of 23.10.2019 on the protection of persons who report breaches of Union law.

- Law of 28.11.2022 on the protection of persons who report breaches of Union or national law found within a legal entity in the private sector, Belgian Official Gazette of 15.12.2022.

- R.D. of 22.01.2023 designating the competent authorities for the implementation of the Law of 28 November 2022 on the protection of persons who report breaches of Union or national law found

[1] The number of workers in the enterprise is calculated according to the rules governing social elections, but at the level of the legal entity. However, this threshold does not apply to enterprises active in the financial sector or in the prevention of money laundering and terrorist financing. These enterprises are required to set up an internal reporting channel, regardless of the number of workers they employ.

[2] In case of violation of the legislation on financial services, products and markets or on the prevention of money laundering and terrorist financing, the compensation will correspond to six months' pay or the actual damage suffered; in this case, the worker will also be entitled to reinstatement.