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New Belgian Whistleblowing Act (private sector)

The Act of 28 November 2022 on the protection of persons who report violations of Union or national law within a legal entity of the private sector (the “Whistleblowing Act”) was passed and published in the Belgian Official Gazette on 15 December 2022. The Whistleblowing Act transposes the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on whistleblowing as regards the private sector.

The aim of the Whistleblowing Act is to offer a specific and better protection to persons who report breaches of EU and national law that are harmful to the public interest (“whistleblowers”) and setting up effective, confidential and secure internal and external reporting channels. It aims to ensure that whistleblowers are protected effectively against retaliation and that they have access to the necessary support measures and to legal remedies and compensation.

The Whistleblowing Act will enter into force on 15 February 2023.

1. Which breaches are concerned?

The Whistleblowing Act applies to legal entities, with or without legal personality, in the private sector and establishes common minimum standards for the protection of persons reporting breaches of EU and national law in the following areas:

• public procurement;
• financial services, products and markets and the prevention of money laundering and terrorist financing;
• product safety and compliance;
• transport safety;
• protection of the environment;
• radiation protection and nuclear safety;
• food and feed safety, animal health and welfare;
• public health;
• consumer protection;
• protection of privacy and personal data, and security of network and information systems;
• tax fraud;
• social fraud;
• breaches affecting the financial interests of the EU;
• breaches relating to the internal market, including breaches of Union competition and State aid rules.

2. Who can be protected as a whistleblower ?

The reporting person concerned is any natural person who reports or publicly discloses information on breaches acquired in the context of his or her work-related activities.

The whistleblowers can be salaried workers, independent collaborators, shareholders, persons who belong to the administrative, management or supervisory body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees and any persons working under the supervision and direction of contractors, subcontractors and suppliers.

The Whistleblowing Act also applies to reporting persons where they report or publicly disclose information on breaches acquired in a work-based relationship which has since ended. Reporting persons whose work-based relationship is yet to begin, also fall under the protection of the Whistleblowing Act, in cases where information on breaches has been acquired during the recruitment process or other pre-contractual negotiations.

3. What are the conditions to be protected as a whistleblower?

The reporting persons benefit from the protection regime, provided (i) that they had reasonable grounds to believe that the information on breaches reported was true at the time of reporting, (ii) that the information was within the scope of the Whistleblowing Act and (iii) that they made a report through one of the reporting channels.

4. Which reporting channels are provided?

4.1. Internal reporting channels

Conditions
Legal entities in the private sector shall set up channels and procedures for internal reporting and follow-up, after consultation with social partners. The implementation of this obligation depends on the number of workers:

(i) Legal entities with more than 250 workers: they are obliged to set up internal reporting channels by 15 February 2023. They are required to accept anonymous reports of violations and ensure the follow up of such report.
(i) Legal entities with 50 to 249 workers: they only have to set up such internal reporting channels by 17 December 2023 at the latest. They are not required to accept and follow-up on anonymous reports.
(ii) Legal entities with less than 50 workers: they are exempted in principle to set up internal reporting channels but they can voluntarily choose to do so.

However, legal entities in the area of financial services, products and markets and in the area of the Act of 18 September 2017, cited above, are always required to set up internal reporting channels, regardless of the number of workers.

How to set up the reporting channel ?

As long as the confidentiality of the identity of the reporting person is ensured, it is up to each legal entity to define the kind of reporting channels to be established. More specifically, the reporting channels should enable persons to make reports in writing, through an online platform and/or orally. At the request of the reporting person, a face-to-face meeting can also be organized within a reasonable timeframe.

The reporting channels can be managed internally by a reporting handler whose function must in any case guarantee his or her independence and the absence of conflicts of interest. The reporting channels can also be handled externally by a third party, provided appropriate guarantees are provided regarding respect for independence, confidentiality, data protection and secrecy.

Internal reporting and follow-up procedures should include a number of elements defined by the Whistleblowing Act, including public communication by the legal entity of the information on the internal and/or external reporting procedures, acknowledgement of receipt of the report within 7 days, processing the reports and providing feedback to the reporting person on the follow-up of the report within a reasonable timeframe not exceeding three months from the date the report is acknowledged and remediation of the reported violation. Each report should be registered and processed in compliance with the confidentiality requirements.

4.2. External reporting channels

Whistleblowers may report information about violations using external reporting channels after reporting through internal reporting channels or by reporting directly through external reporting channels. Competent authorities to be appointed by Royal Decree, or in the absence of such appointment, the Federal Mediators (“Federale Ombudsmannen”/”Médiateurs fédéraux”), are empowered to receive reports, provide feedback and follow up on reports.

4.3. Public disclosure

Under certain circumstances, whistleblowing can take place through public disclosure. A person who makes a public disclosure shall qualify for protection under the Whistleblowing Act if some conditions are fulfilled. This requires, among other things, that they have first reported the information internally or externally and that they have reasonable grounds to believe that the breach in question is an imminent danger to the public interest.

5. Which protection is provided?

5.1.Prohibition of any form of retaliation

The Whistleblowing Act prohibits any form of retaliation against the whistleblower, including the threat and attempted retaliation, in the following ways:

• suspension, lay-off, dismissal or similar measures;
• demotion or withholding of promotion;
• transfer of duties, change of workplace location, reduction in wages, change in working hours;
• withholding of training;
• negative performance assessment or employment reference;
• imposition or administering of any disciplinary measure, reprimand or other penalty, such as a financial penalty;
• coercion, intimidation, harassment or ostracism;
• discrimination, disadvantageous or unequal treatment;
• non-conversion of a temporary employment contract into an employment contract for an indefinite period, in case the employee had the legitimate expectation that he would be offered employment for an indefinite period;
• non-renewal or early termination of a temporary employment contract;
• harm, including damage to reputation, especially on social media, or financial loss, including loss of turnover and income;
• blacklisting on the basis of an informal or formal agreement for an entire sector or industry, preventing the person from finding employment in the sector or industry;
• early termination or cancellation of a contract for the supply of goods or services;
• revocation of a licenceor permit;
• psychiatric or medical referrals.

5.2.Support measures

Reporting persons should have access to support measures such as information and advice on available remedies and procedures that protect against retaliation and their rights, legal assistance, technical, psychological, media and social support, and financial assistance in court proceedings. Whistleblowers who believe they are victims of or threatened with reprisal can complain to the federal coordinator (“federalecoördinator”/”coordinateurfederal”) who initiates an out-of-court protection procedure. Those who are victims of retaliation can claim compensation in accordance with contractual or extra-contractual liability law.

6.What are the sanctions ?

In the event of violation of the provisions of the Whistleblowing Act, administrative and criminal sanctions (imprisonment of six months to three years and/or a fine of 600 to 6.000 euros) may be applied.

If you need assistance with the implementation of internal reporting channels and drafting of a policy, do not hesitate to contact us. We are looking forward to helping you.