EU Whistleblowing Directive - Belgium

Existing whistleblower protection

There is currently no general legislation in Belgium to implement the EU Whistleblower Directive. However, two specific whistleblowing regimes already exist in the private sector.

• Firstly, Belgium adopted a sectoral whistleblowing regime for reporting infringements of the financial legislation to the National Bank of Belgium and the Financial Services and Markets Authority.
• Secondly, Belgium has implemented the fourth European anti-money laundering Directive, which imposes a duty on entities such as credit institutions, insurance companies, investment firms, notaries and lawyers to report to the Belgian Financial Intelligence Processing Unit and/or the relevant Obliged Entity's supervisory authority.

This means that if an individual wants to blow the whistle, there is no procedure that he/she must follow. It also means that an individual does not have specific protection if he/she blows the whistle and any protection that they might have arises only from general employment obligations (such as the mutual duty of respect).

Current implementation status

In October 2022, draft legislation to transpose the EU Whistleblowing Directive into Belgian law was submitted to the Belgian Parliament. On 16 December 2022, the act was published in the Belgian Official Gazette.

The Whistleblowing Act entered into force on 15 February 2023.

We elaborate below on the provisions of the act:

• The act aims to protect persons who report violations in the following areas:
  • public procurement;
  • services;
  • financial products and markets and the prevention of money laundering and terrorist financing;
  • product safety and compliance;
  • transport safety, environmental protection;
  • 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 networks and information systems.

• Combating tax and social fraud. One of the most substantial obligations of the new legislation is the obligations to establish internal reporting channels. This concerns the appointment of an independent person responsible for the follow-up of the reports, who is not in charge of the workforce. In this regard, all companies of the “financial service industry” (regardless of the number of employees) and companies with more than 50 employees are required to establish an internal reporting channel and internal reporting procedures, which must follow a set of rules and requirements.
• It is not required that the person responsible for handling the whistleblowing matters is an individual who is based in Belgium, therefore, possible to be someone outside Belgium. It is equally possible that the handling of internal whistleblowing reports is outsourced to a third party. The establishment of the internal reporting channel requires information and consultation with the employees or the unions. As a result, if employers wish to use current existing channels and policies, it must consult with the employees on its implementation.
• On top of that, employers must provide clear and easily accessible information on the internal and external reporting channels and procedures.

The legislation seeks to encourage internal reporting but does not impose it. In principle, it will always be possible for whistleblowers to use the external reporting channels and rely on the competent authorities.

• Whistleblowers will be protected against retaliatory measures.

In case of employees, this includes protection against all kinds of actions taken by the employer such as protection against dismissal or transfer to another function.

A breach against these protective measures can entitle the whistleblower to an indemnity between 18 and 26 weeks of remuneration.

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.

• The law provides sanctions/administrative fines ranging from level 4, being a prison sentence of 6 months to 3 years and/or a criminal fine of €4,800 to €48,000 or an administrative fine of €2,400 to €24,000 for anyone who obstructs or tries to obstruct the reporting, retaliates or initiates an abuse procedure against the whistleblower, or breaches the confidentiality of the whistleblower.

The Belgian Data Protection Authority (DPA) has published its advice and recommendations on the data protection aspects of the draft whistle-blowing bill. As expected, the General Data Protection Regulation (GDPR) will be an influential framework for whistleblowing systems. GDPR will also dictate how personal data should be managed and compliance officers will be required to follow very specific procedures when handling personal data, particularly as it pertains to issues of whistleblowing reports and reporters.

Further information

The EU Whistleblowing Directive is an opportunity for the Belgian legislator to reduce the legal uncertainty resulting from diverging protection regimes in specific legislation at sectoral level.

It should be noted that the legislator will have to ensure that the merits of the new whistleblower protection regime are not undermined by employees seeking to use the protection only because they want to avoid dismissal or cause damage to the company.