Belgium: New obligations under the Belgian Whistleblower Act for private entities

In a nutshell

On 23 October 2019, the European Parliament and the Council adopted Directive (EU) 2019/1937 on the protection of individuals who report violations of EU law, informally known as the “EU Whistleblower Directive”.

The EU Whistleblower Directive aims to encourage reporting of misconduct through the protection of individuals who report certain violations of EU law. More specifically, it sets out internal and external reporting frameworks with specific time frames for providing feedback to whistleblowers and robust counter-retaliation provisions.

Belgium implements the EU Whistleblower Directive separately for the public and private sectors. Law of 8 December 2022 Reporting Channels and Whistleblower Protection in Federal Public Sector Agencies and Consolidated Police, and Law of 28 November 2022 Issued on December 15, 2022 and effective on February 15, 2023, regarding whistleblower protection for violations of federal or established domestic law within private sector legal entities.

As a result, companies with up to 249 employees (outside the financial sector) have a little more time to adapt, but more time for targeted stakeholders to adapt to the changes introduced by this new Belgian whistleblower law.

A. Whistleblower Act

1. Entry into force

On 15 December 2022, the Act of 28 November 2022 on the Protection of Persons Reporting Violations of National or EU Law within Private Sector Legal Entities (“Whistleblower Act) is published in the Belgian Official Gazette (France/NL).

The Whistleblower Act came into effect on February 15, 2023. That is, two months after his promulgation. Please note that the specific obligations apply only to companies with 50 works up to 249 works after December 17, 2023.

2. Scope of application of materials

The Whistleblower Act provides the following protections for reporters:

• (a) Violations Relating to Public Procurement. (b) financial services, products and markets, and anti-money laundering and terrorist financing; (c) Product Safety and Suitability. (d) Transportation Safety. (e) Environmental Protection. (f) Radiation protection and nuclear safety. (g) food and feed safety, animal health and welfare; (h) Public Health. (i) Consumer Protection. (j) privacy and personal data protection and network and information system security; (k) Fighting Tax Evasion. (l) combating social fraud; Please note that violations of any statutory or regulatory provisions or directly applicable European provisions, as well as any violations of the provisions adopted in the implementation of the above provisions, are within the scope of law.
• Violations affecting the financial interests of the European Union and, where applicable, implementation of national regulations
• Violations related to the internal market, including competition and state aid rules

3. PERSONAL SCOPE

The Whistleblower Act is intended to protect a variety of individuals and entities.

• Whistleblowers working in the private sector who obtain information about violations in a professional context (e.g., employees of all types, self-employed persons, shareholders and members of company management, management, or supervisory bodies, anyone working under their supervision) person) and instructions of contractors, subcontractors, and suppliers)
• Whistleblowers whose employment relationship has ended after disclosure and who have not started employment (if information about the violation was obtained during the recruitment process or pre-contract negotiations)
• Facilitators and third parties (i.e. colleagues or relatives) associated with the whistleblower and at risk of retaliation in a professional context
• Legal entity owned by the whistleblower or associated in a professional context

In addition, the relevant provisions of the Whistleblower Act also apply to:

• Whistleblowers who communicate information obtained outside their professional context when reporting violations in the areas of financial services, products and markets, and in the areas of preventing money laundering and terrorist financing
• Any organization, whether or not it has legal personality, is under the jurisdiction of a federal entity and is under the jurisdiction of a federal state, unless the matter is regulated by local or community law.

B. Compliance

1. New obligations related to internal reporting

Private sector legal entities with 50 or more employees (using specific calculation methods to determine this number of employees) and legal entities that provide financial products or services and/or terrorist financing and money laundering laws Eligible legal entities (regardless of number of employees) Channels and procedures for internal reporting and follow-up of reports should be established. There can be no contractual or statutory exceptions as the provisions are subject to law and order.

Legal entities employing less than 50 employees are not legally obligated to establish channels and procedures for internal reporting (unless otherwise provided for in a Royal Decree).

Legal entities have an obligation to accept and follow up on anonymous reports. However, legal entities with fewer than 250 employees are not obligated to accept anonymous reports.

2. Compliance deadline

3. External reporting and disclosure

In addition to whistleblowing channels, the Whistleblower Act also establishes whistleblowing channels and public disclosure. You can report directly through external reporting channels without first using internal reporting channels.

In the case of public disclosure, certain conditions apply to benefit from protections under the Whistleblower Act.

• First person to report internally and externally or directly externally, but no proper action taken respond to the report within the relevant time period; or
• The reporter has reasonable grounds to believe that the violation may be a component of imminent or obvious danger to public interest again;
• In the case of an external report, the reporter shall: risk of retaliation or if a breach is unlikely to be effectively dealt with due to the specific circumstances of the case (evidence may be concealed or destroyed, authorities may be in collusion with the perpetrators of the violation).

4. Employment Law Aspects

The calculation of the number of employees is a method of calculation It applies to the law on social elections (but at the legal entity level) as follows:

• The number of calendar days the employee worked during the reference period (see Dimona Manifesto) divided by 365
• Reference Period = Period of four quarters prior to the quarter in which the notice announcing the date of the social election is posted – According to the Federal Service Economy, the last four quarters prior to the calculation date should be taken into account.
  2024 Social Elections: 1 October 2022 to 30 September 2023
• Certain calculation rules apply. For example, with regard to intermediate employees.

Reporting channels and procedures should be communicated with the social partners, i.e. the works council, or, in the absence thereof, trade union delegations, then the Commission for Prevention and Protection at Work, or, in the absence of all, the Commission. Should be set after consultation. These are employees directly.

Whistleblowing procedures should be made available to employees. local language (Dutch, French, or German). Sanctions for non-compliance vary by location and include:

• Flanders: (absolute) void without prejudice to certain rights of employees (translations have no retroactive effect)
• Wallonia: (absolute) void (translations have no retroactive effect)
• Brussels-Capital, German-speaking and municipalities with language facilities: (relative) ineffective (retroactive translation possible)

5. Sanctions for non-compliance

Employers who do not comply with the provisions of the Whistleblower Act may be subject to sanctions of the highest degree (Level 4) under the Social Crimes Act: €2,400 to €24,000 (up to €100 per employee).

Criminal sanctions are also foreseeable in case of violations of the Whistleblower Act, including imprisonment of 6 months to 3 years and fines of €4,800 to €48,000 (€24,000 to €576,000 for legal entities).