Belgium is not the only bad student in the European class. The vast majority of EU Member States have not met the deadline of 17 December 2021 for the implementation of Directive (EU) 2019/1937 of 23 October 2019 on the protection of persons who report breaches of the Union law. Nevertheless, Belgium has already taken important steps: for example, there is a draft legislative proposal for the private sector on which the social partners of the RAN have given their opinion. However, it shows that there is still a lot of work to be done. A law passed is only expected by summer 2022.
The EU adopted the directive in 2019 in response to some high-profile (mainly tax) scandals uncovered by whistleblowers. Such a system has existed for some time in the United States, and a regulation was introduced in France in 2016 (“loi Sapin 2′”). In Belgium, for the moment, we had to settle for a specific regulation to the FSMA and, among others, the staff of the federal and Flemish authorities.
The transposition of the European directive on whistleblowers therefore implies an important development for Belgian authorities, organisations, companies and employees. The personal scope of application is very broad – both the private and public sectors are concerned – which means that several federal ministers and all the Regions are immediately competent for the transposition. It is therefore not surprising that the transposition of the directive turns out to be a complicated affair, but perhaps the government should not have waited until the beginning of 2021 to act.
Currently, there is talk at the federal level of a future parallel regulation of the private sector and the public sector. It has not yet been clarified under which regime, for example, public sector companies will fall. The national partners rightly prefer that the different systems are harmonized as much as possible. In addition, reports from whistleblowers must in principle relate to breaches in their professional context. But the protection is not limited to employees and also applies, for example, to freelancers or suppliers. Reports should be limited to one of the listed legal areas (e.g. consumer protection, GDPR, public health,…). To the chagrin of employers’ organisations, the preliminary draft for the private sector went even further than the directive by widening the scope of application to an additional area, namely the fight against fraud and tax evasion. Strike point: there is no extension to reports on social law and even the Belgian trade unions do not seem to see a problem there, whereas it was an important point of discussion during the drafting of the directive. Furthermore, some members of the Government would be in favor of extending the material scope of application to breaches of all Belgian legal provisions.
Internal reporting channel
For legal persons, including companies, perhaps the most important novelty in the short term is that they must set up an internal reporting channel. In the private sector, this obligation initially only applies to companies (or legal persons) with 250 or more employees. From December 17, 2023, the obligation will also come into force for companies with 50 to 249 employees. Small businesses will be spared, unless the King (of the Belgians) changes his mind later, by royal decree. The internal reporting channel must be established “in consultation with the social partners”; what this actually means (consultation of the works council, union delegation, CPBW?) remains a mystery.
An internal reporting channel means that whistleblowers can turn to an impartial and independent person or department within the entity to make a written or oral report of a suspected violation, if they wish anonymously. According to the draft, the person reporting the case cannot hold a managerial position, a requirement which is not in the directive and which, according to the social partners, will hinder the effective follow-up of the report. Following the notification, an acknowledgment of receipt must be issued within seven days and, at the latest, feedback must be given within three months on the measures taken by the entity to ensure the proper complaint follow-up. The draft law stipulates that with such an internal procedure, all employee rights to consult union representatives or to report violations to them remain unaffected. However, the exact function of employee or trade union representatives in the internal (or external) procedure remains unclear, to the chagrin of the social partners. It is also stipulated that companies with less than 250 employees can share their internal reporting channel with other entities. This rule already raises many questions as to whether larger groups with separate legal entities as departments will need to establish multiple reporting channels, which may lead to a different approach within the same group or parent company. . Companies can also outsource their internal reporting channels to service providers (eg a social secretariat), but they remain responsible for their obligations.
In addition to internal reporting, external reporting is also possible, following internal reporting or immediately. This notification will be made to a competent authority. Which authorities will be competent (joint committees, professional organisations, State services?) remains to be determined.
These competent authorities must follow a similar procedure, but can postpone their feedback until six months after the notification. Additionally, they must inform whistleblowers of the end result. If the external competent authorities do not meet the deadlines, the whistleblowers can proceed with the disclosure of information on the breach. Here, companies run the risk that whistleblowers make public disclosures, which would damage their reputation, as the authority will not be able to deal with reports in time in the event of an overflow of notifications. In some cases, prior external notification is not even necessary for disclosure. The social partners recall the importance of good faith and a prior balancing of interests, given the significant harm that a disclosure can cause to a company.
Finally, whistleblower protection is an important spearhead of the directive and the draft legislative proposal. There will be protection against retaliation (from dismissal, to harassment, to non-renewal of a contract) as long as the reporting person followed the procedures and could reasonably assume at the time of reporting that the information reported was correct. The criterion here is not a “reasonable and prudent person” (remember the old “premium paterfamilias‘), but a person with similar knowledge in a similar situation.
The protection creates a legal but rebuttable presumption that retaliation is linked to the report. However, this suspicion is not subject to a time limit, as is the case for existing labor law protection regimes. Thanks to the protection, the whistleblower cannot, in principle, be held liable in court and can, among other things, claim compensation in court. Unlike other protection regimes, the preliminary draft does not provide for lump sum compensation. This will make it very difficult for the whistleblower to prove actual damages. The social partners therefore offer surprisingly high lump sums (18-26 weeks’ salary). Finally, the future whistleblowing authority will also be able to impose administrative penalties, which, according to the preliminary draft, can amount to up to 1.25 million euros.
The above shows that there are still many uncertainties and that it would be better to carefully refine the draft legislative proposal before the government submits it to Parliament. We are too late now anyway; with a little more time, painful tinkering can be avoided. Until then, companies and organizations can best start building their internal reporting system. The required prior social consultation takes time. As long as there is no Belgian legislation, the possibility of a direct horizontal application of the directive to companies in the private sector seems non-existent. However, it cannot be excluded that whistleblowers will try to invoke the protection in the event of, for example, suspicious dismissal after 17 December 2021.
Key Action Points for Human Resources and Corporate Lawyers
- Belgium will implement its new system by summer 2022.
- Prepare your company for the establishment of an internal reporting mechanism.
- Avoid retaliatory action against whistleblowers.