UPDATE REGARDING THE BELGIAN WHISTLEBLOWER ACT

Mandatory “whistleblower policy” for all companies with 50 employees or more

In a nutshell

On 28 November 2022, Belgium adopted a new law on the protection of reporters of breaches of Union or national law observed within a legal entity in the private sector (hereinafter referred to as the “Whistleblower Act” or the “Act”). This Act implements the EU Whistleblower Directive 2019/1937.

This new legislation seeks to offer better protection to individuals in the private sector reporting a breach of EU or national law, by:

• imposing a mandatory internal reporting procedure on the legal entities targeted by the Act; and
• prohibiting and sanctioning any attempt at retaliation (such as dismissal, suspension, demotion, etc.) for reports falling within the scope of this Act.

What kind of reports fall within the scope of the Whistleblower Act (material scope)?

The Act imposes common minimum standards for the protection of persons reporting the following:

• Breaches relating to:
  • public procurement
  • financial services, products and markets, prevention of money laundering and terrorist financing
  • product safety and product 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
  • the fight against tax fraud
  • the fight against social fraud
• Breaches affecting the financial interests of the European Union
• Breaches relating to the internal market, including the rules on competition and state aid

Who can be protected as a whistleblower (personal scope)?

The Whistleblower Act protects a very wide range of individuals working in the private sector who have obtained information about violations in a professional context, such as: employees, self-employed individuals, shareholders, members of the administrative, management or supervisory body of a company, any person working under the supervision and direction of contractors, subcontractors and suppliers, etc.

It is irrelevant that the professional relationship has in the meantime ended or is yet to start (since the information on breaches could also have been obtained during the recruitment process or pre-contractual negotiations).

Which companies must implement an internal reporting procedure?

All legal entities with 50 or more employees (as well as all companies in the financial sector, regardless of the number of employees) have to establish an internal reporting procedure. This threshold of 50 employees will be calculated in the same way as the rules for social elections prescribe (i.e. based on the average employment over a reference period).

How to set up an internal reporting channel?

The Whistleblower Act requires that an internal procedure for reporting and follow-up is adopted (i.e. a “whistleblower policy« ). An internal reporting manager must be appointed and shall receive the reports, maintain communication with the reporting individual, investigate the report and provide feedback. In addition, a register must be kept of every report received.

Confidentiality of the internal reporting must always be ensured.

Companies with 250 or more employees must allow anonymous internal reporting.

To implement the internal reporting procedure, the social partners must be consulted (works council, trade union delegation, etc.).

All employees, service providers and clients must be properly informed on how to file a report and how it will be followed up.

External reporting

Reporting can  also be done through an external reporting channel designated by the government.

When do these new rules apply?

The Whistleblower Act was published on 15 December 2022 and entered into force on 15 February 2023.

Companies with 250 employees or more (as well as companies in the financial sector) must comply with the internal reporting requirements as from 16 February 2023.

For companies with 50 to 249 employees, the Act provides a transition period. These companies must adopt a whistleblower policy by 17 December 2023.

Nothing prevents companies with less than 50 employees to voluntarily implement internal reporting requirements.

The protection against retaliation already applies.

What are the sanctions in case of non-compliance?

Since the provisions of the Whistleblower Act are public policy, no derogations are possible. Violations of the obligations under this Act are punishable in accordance with level 4 of the Social Penal Code. This means that the administrative fines range from 2.400 EUR to 24.000 EUR per employee. Criminal sanctions are also possible in case of non-compliance with the Whistleblower Act, including imprisonment ranging from six months to three years and/or fines ranging from 4.800 EUR to 48.000 EUR.

Interested or need assistance?

Our firm is of course available to assist you and advise you on all your questions regarding this new legislation (e.g. in view of drafting a whistleblower policy).

Frederik Offermans & Tanguy Gillain