Background: Belgium and the EU Whistleblowing Directive
The European Union has had to deal with a patchwork framework of whistleblower protection laws in different member states that vary considerably in scope, creating a confusing legal landscape. The EU Whistleblowing Directive is intended to bring in sweeping new measures, moving the bloc to a single comprehensive protection standard.
One of the core features of the new legislation is a requirement for all private and public sector employers with 250 or more employees to implement a whistleblowing system with small organisations employing between 50 and 249 people given extra time to complete the process. It also requires regular dialogue between the organisation and the whistleblower while retaliatory action against the complainant is forbidden.
Before the transposition, Belgium did not have a comprehensive legal framework in place to protect whistleblowers. Two procedures did exist in the private sector relating to financial markets and money laundering while a September 2013 law offered protection to whistleblowers working for federal administrative governments. Belgium’s new law closely aligns with the content of the Directive but it also expands on it by focusing on tax and social fraud.
The scope of Belgium's new law
The new measures are aimed at protecting whistleblowers who report violations in a number of areas of EU law including public procurements, financial services, transport safety, consumer protection, food and feed safety, product safety as well as radiation protection and nuclear safety among others.
It is not just applicable to employees but to all individuals who obtained information in a work-related context. This includes the self-employed, former employees, trainees and service providers.
Companies with fewer than 250 employees may pool resources for the receipt of reports and to facilitate investigations, though this should not impact the law’s requirements in areas such as confidentiality and regular dialogue with the whistleblower.
The requirement for reporting channels
Translating to “The Act on the Protection of Reporters of Breaches of Union or National Law Discovered Within a Legal Entity in the Private Sector”, the new Belgian law provides for three different reporting channels:
While reporting through internal channels is encouraged, whistleblowers are free to use the channel they deem most appropriate for their complaint. Companies operating in Belgium with 250 or more employees are required to establish a secure, impartial and confidential internal reporting channel from 15 February 2023. Organisations providing specific and financial economic services have to take this step as soon as they employ one person. For companies with between 50 and 249 employees, the implementation deadline for reporting channels is 17 December 2023.
The legislation mandates that organisations appoint a reporting manager and this can be someone within the organisation or a specialised external provider. Reports can be submitted in writing, by phone or in person while the personnel handling the whistleblowing data must do so with strict confidentiality.
In organisations with 250 employees or more, anonymous reports can be filed and must be processed. A report has to be acknowledged within seven calendar days and the whistleblower must be informed about its outcome within three months.
The Federal Ombudsman was designated as the coordinating body for external reporting channels. Upon receipt of a whistleblower report, the Ombudsman will dispatch it to the appropriate matter or industry-specific body such as the Data Protection Authority or Financial Services and Market Authority. Reporting can also be done via a public disclosure if the internal and external channels do not result in appropriate action or if there is an immediate threat to the public interest.
Protection against retaliation and sanctions
Belgium’s new law provides protection against retaliation and the threat of retaliation for all individuals utilising the three reporting channels. The definition of retaliation is broad and it takes into account both suspension and dismissal, changing the terms of employment, demotion, withholding promotion, blacklisting and intimidation. As a safeguard against potentially malicious or frivolous reporting, the whistleblower should have reasonable grounds to believe that their complaint is true.
An individual who has suffered retaliation is entitled to compensation ranging from 18 to 26 weeks salary or compensation equal to the actual damages if he or she is not an employee. The law also provides for a reversal of the burden of proof which means that the employer will have to prove that any disadvantage afforded to the whistleblower was justified and not related to the report.
There are also tough sanctions for non-compliance and employers are liable for a prison term of between six months and three years. For legal entities, this can result in a fine of between €24,000 and €576,000. Non-compliance can take the form of impeding (or trying to impede) a report, the initiation of vexatious proceedings against a whistleblower, retaliation or the violation of confidentiality.
It has been a long road but Belgium has finally gotten its transposition process over the finish line. Late 2022 saw a flurry of activity across Europe as Germany, Greece, Italy and Romania joined Brussels in implementing comprehensive new whistleblower protection legislation. Despite the delay, Belgium can be especially proud of its efforts given that they go above and beyond the requirements of the EU Whistleblowing Directive.
Guide to the Introduction of Whistleblowing Systems
How to successfully implement a whistleblowing system in your organisation.