Whistleblowing in Belgium

The upcoming regulations to implement the EU Whistleblower Directive will definitely have an impact on companies in Belgium. Some companies will have to plan ahead to implement internal reporting systems in their organization. This will require processes, budget and people. All companies will in any case have to be prepared to deal with employees who blow the whistle, be it through an external procedure. Even if raising concerns is considered part of corporate/good governance, it still remains to be seen if this change in regulation will encourage (more) people to speak up (more) and help foster a cultural change where one feels comfortable enough to bring issues to the table.

Like many other member states of the European Union (EU), Belgium failed to timely transpose the EU Whistleblower Directive No. 2019/1937 of 23 October 2019 (EU Whistleblower Directive), into national legislation. The deadline of 17 December 2021 was not met, reason why the European Commission sent an official warning to our country. 

However, since January 2022, government negotiations started on two preliminary draft laws transposing the EU Whistleblower Directive, one for the private sector and one for the public sector. The aim was to adopt both of them before or by 21 July 2022, but this has not been the case.

Hence, whistleblowing currently [1] is not regulated in Belgium (with some exceptions for the financial industry and public sector) and there is no legislation that transposes the EU Whistleblower Directive to enactment as of this writing. 

Note that the below is based on the preliminary draft of the regulation applicable for the private sector. Although some changes to the draft remain possible, companies will at least know what is expected to enter into force in Belgium shortly. 

The material scope of application of the whistleblowing policy seems to be broader than that intended by the EU Directive as it also concerns tax/social fraud and tax evasion. Moreover, reference is made to a non-exhaustive list of national laws transposing EU directives and regulations. This broader scope of application has been the only point where trade unions and employer organizations of the National Labour Council (NLC) were not on the same page when advising parliament on the draft laws [2].

Existing reporting systems, such as the possibility for employees to ask for an intervention in case of harassment or other psychosocial risks such as stress or burn-out, (on the basis of the Act on Well-being of employees) or the individual right to be assisted by and/or to consult a trade union or employee representative, are not affected and remain in place. 

The regulations will apply to employees/officials who have obtained information in a work-related context. Self-employed consultants, trainees, ex-employees, directors, shareholders would also be protected if they report a breach in good faith.

The general principles of the regulation apply to all whistleblowers obtaining information on breaches in a work-related context. 

However, only private legal entities (companies, including de facto associations) of more than 50 employees (also referred to as small and medium-sized enterprises (SME’s) will have to provide an internal reporting channel and procedure for whistleblowing. There is only one exception: private financial and economic SME’s and SME’s with activities related to the prevention of money laundering and terrorist financing will in any event have to install an internal procedure, regardless of the number of employees.

Noteworthy is that the preliminary draft mentions that after an appropriate risk assessment, even legal entities with less than 50 employees could be obliged to install an internal reporting system. However, we anticipate this is not likely to happen in practice. 

Companies in the private sector with at least 250 employees should have an internal reporting channel and procedure in place by September 2022, assuming the regulation would enter into force in July 2022, which is not the case. Indeed, the preliminary draft law provides for a transition period of two months to allow the concerned companies to adapt to the new legislation. 

Companies with at least 50 employees have somewhat more time and should implement internal reporting systems by 17 December 2023. 

Companies belonging to an international group will not be compliant with a mere implementation of a global policy. This policy must always comply with the stricter local rules, if any. Therefore, a global standard policy with an appendix per country that provides for the necessary deviations, seems to be a best practice.

The employment thresholds will be calculated in accordance with the rules that apply for social elections. Social elections are elections organized every four years in Belgium during which employees elect their representatives in the company’s works council and/or health and safety committee. 

An internal reporting channel and procedure should comply with a number of formalities (including both verbal and written possibilities to blow the whistle, the possibility to have a conversation about the complaint, specific confirmation of receipt that should be issued following a complaint,…). Companies would still have certain flexibility to implement the system. They would be able to choose the most appropriate person or service to receive and follow up the reports, provided their independence is guaranteed and no conflict of interests exists. Culture of the organization, budget and resources are decisive here.

The draft regulation does not stipulate how the rules are to be implemented. This can be done as part of the work rules (a mandatory document in Belgium, similar to an employee handbook), a collective bargaining agreement or a simple policy. Given the flexibility of a policy in terms of reviewing and changing at the employer’s sole initiative, we would recommend to use the latter. In any case, social dialogue (this is the process of information and consultation of employee representatives / employee consultative bodies) must be respected: information and consultation must take place according to the known cascade system: works council, trade union delegation, health and safety committee or directly with the employees of the company.

Whistleblowing remains a possibility and not an obligation. A whistleblower can choose whether to use the internal procedure or the external procedure (see below 6), but the intention is that the internal procedure should be preferred/encouraged as much as possible.

A so-called independent and autonomous “Whistleblower Authority” will have to be established to act as an external reporting channel. This authority will be competent to receive reports, provide feedback and offer follow-up on notifications. It is possible that several (existing) authorities will be given specific powers, in the specific areas concerned (e.g. Data Protection Authority (DPA), Financial Services and Markets Authority or Competition Authority) or that a certain transmission of data between the authorities will be put in place. 

As a last resort, if no appropriate action has been taken in response to an external report within a specified timeframe, the whistleblower will be allowed to disclose this information to the media. This will be the case when there are serious grounds for believing that there is an immediate threat to the public interest, or where there is a risk of retaliation or destruction of evidence. 

Companies employing over 250 employees will have to implement the possibility of anonymous reporting. Companies employing less than 250 employees will likely not be obliged to do so. The DPA mentions in its report [3] that this difference in treatment between companies employer over and under 250 employees should in any case be explained in further detail before it can be validly imposed as a legal obligation in the final bill. Also according to the DPA, anonymous reporting should remain optional and exceptional. 

Whistleblowers should be protected against retaliation. The protection does not only apply to employees, but also to persons who blow the whistle in any other capacity.

In case of employees, this includes protection against all kinds of actions taken by the employer such as dismissal, negative performance appraisals, lack of promotion opportunities or demotion, change of employment conditions, disciplinary sanctions, non-renewal of a fixed term employment contract, intimidation or harassment,…

Whistleblowers are eligible for the protection scheme provided that, at the time of the report, they had reasonable grounds to believe that the reported information was truthful and that the information fell within the scope of the law, and that they either filed an internal or external report or made a public disclosure.

Whistleblowers who are nonetheless victim of retaliation will likely be entitled to receive a specific compensation between eighteen and twenty-six weeks' salary (or in case of infractions of legislation related to financial services, products and markets or the prevention of money laundering and financing of terrorism: a compensation amounting to six months’ salary or compensation of the actual damage sustained; in this case an employee would also have a right to reinstatement which is fairly exceptional under Belgian law). 

The aforementioned compensation cannot be combined with any compensation for unfair dismissal (in Belgium capped at a compensation ranging from three to seventeen weeks’ salary, depending on the degree of unfairness as established by a judge). 

Currently, as the preliminary draft stands, it will be up to the employer to prove that any measure taken against the employee is not related to them blowing the whistle and this for an unlimited period of time in time. The NLC advised the Belgian legislator to limit this shift in the burden of proof in time (as is for instance the case in other regulations in Belgium, such as the Act on well-being of employees where after 12 months, it will be up to the employee (and no longer to the employer) to prove the dismissal or other retaliatory measure was taken because of them calling out certain behaviour and making use of their protected right to blow the whistle).

Lastly, whistleblowers will have a statutory right to support from the trade union delegation.

Companies who do not comply with the regulations can be imposed administrative fines and even criminal sanctions (fines and/or imprisonment). 

The NLC pointed out in its advice that effective sanctions should also be provided for those who blow the whistle in bad faith or who deliberately make a false disclosure. This recommendation was not included in the preliminary draft laws.

[1] This article has been written on 15 September 2022.

[2] See Advice 2252 NLC: only available in Dutch advies-2252.pdf (cnt-nar.be) and French avis-2252.pdf (cnt-nar.be)).

[3] See Advice 69/2022 DPA, only available in Dutch Nl_Advies.dotm (gegevensbeschermingsautoriteit.be) and French Nl_Advies.dotm (autoriteprotectiondonnees.be).