Belgium is not the only bad pupil in the European class. The vast majority of EU Member States did not meet the deadline of 17 December 2021 for the implementation of Directive (EU) 2019/1937 of 23 October 2019 on the protection of individuals who report infringements of Union law. Nevertheless, Belgium has already taken some important steps: for example, there is a draft legislative proposal for the private sector on which the social partners in the NAR have given their opinion. However, this shows that there is still a lot of work to be done. An adopted law is only expected by the summer of 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 in the United States for some time, and a regulation was introduced in France in 2016 (‘loi Sapin 2′). In Belgium, for the time being, we had to make do with some specific regulations for the FSMA and, among others, staff of the federal and Flemish authorities.
The transposition of the EU Whistleblower Directive therefore entails an important evolution for the Belgian authorities, organisations, companies and employees. The personal scope is very broad – both the private and the public sector are targeted – which immediately results in several federal ministers and all the Regions being competent for the transposition. It should therefore come as no surprise that the transposition of the directive is proving to be a complicated affair, but perhaps the government should not have waited until early 2021 to act.
At present, there is talk at the federal level of a future parallel regulation of the private and public sector. It has not yet been clarified under which system, for example, the public sector companies will fall. The national partners rightly prefer that the different systems are harmonised as much as possible. Furthermore, reports from whistleblowers must in principle relate to breaches in their work-related context. But the protection is not limited to employees and also applies, for example, to freelancers or suppliers. The reports must be limited to one of the listed legal areas (e.g. consumer protection, GDPR, public health,…). To the frustration of employers’ organisations, the preliminary draft for the private sector went even further than the Directive by extending the scope to include one more area, namely the fight against tax fraud and tax evasion. Striking point: there is no extension to reports on social law and even the Belgian trade unions do not seem to find this a problem, while it was an important point of discussion during the drafting of the Directive. Furthermore, some members within the Government would be favourable to extend the material scope to breaches of all Belgian legal provisions.
Internal Reporting Channel
For legal entities, 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 applies only to companies (or legal entities) with 250 or more employees. From 17 December 2023, the obligation will also enter into force for companies with 50 to 249 employees. Smaller companies will be spared, unless the King (of Belgium) changes his mind later on, by royal decree. The internal reporting channel must be established “in consultation with the social partners”; what that means in practice (consultation of the works council, trade union delegation, CPBW?) remains a mystery.
An internal reporting channel implies 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 infringement, if desired anonymously. According to the preliminary draft, the reporting manager may not hold a managerial position, a requirement that is not found in the Directive and that, according to the social partners, will impair the efficient follow-up of the report. Following the notification, an acknowledgement of receipt must be made within seven days and, at most, feedback must be given within three months on the steps taken by the entity to ensure proper follow-up of the complaint. The preliminary legislative proposal states that with such an internal procedure, all rights of the employee to consult trade union representatives or to report infringements to them remain unaffected. However, the exact function of the employee representatives or trade unions in the internal (or external) procedure remains unclear, to the irritation 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 leads to many questions as to whether larger groups with separate legal entities as departments will have to establish multiple reporting channels, which may lead to a different approach within the same group or parent company. Companies may also outsource their internal reporting channels to service providers (e.g. a social secretariat), but they remain liable for their obligations.
In addition to the internal reporting, an external reporting is also possible, following the internal reporting or immediately. This notification will be made to a competent authority. Who the competent authorities will be (joint committees, professional organisations, government services?) has yet to be determined.
These competent authorities must follow a similar procedure, but may delay their feedback until six months after the notification. Moreover, they must inform the whistleblowers of the final result. If the external competent authorities do not meet the deadlines, the whistleblowers may proceed to disclose the information about the breach. Here, companies run the risk that whistleblowers will make public disclosures, resulting in reputational damage, because the authority will not be able to handle the reports in time if there is an overflow of notifications. In some cases, a prior external notification is not even necessary for a disclosure. The social partners point out the importance of good faith and a prior balancing of interests, given the significant damage a disclosure can cause to a company.
Finally, the protection of the whistleblower is an important spearhead of the Directive and the draft legislative proposal. There will be protection against reprisals (from dismissal to harassment, to non-renewal of a contract) insofar as the reporter has followed the procedures and could reasonably assume at the time of the report that the information reported was correct. The criterion here is not a ‘reasonable and prudent person’ (remember the old ‘bonus pater familias‘), but a person with similar knowledge in a similar situation.
The protection creates a legal but rebuttable presumption that a retaliatory measure is linked to the report. However, this suspicion is not subject to a time limit, as is the case for existing labour law protection schemes. Thanks to the protection, the whistleblower cannot, in principle, be held liable in court and can, among other things, claim compensation in court. In contrast to other protection schemes, the preliminary draft does not provide for a lump sum compensation. This will make it very difficult for the whistleblower to prove the actual damage. The social partners, therefore, propose surprisingly high flat-rate compensation (18-26 weeks of pay). Finally, the future whistleblower authority will also be able to impose administrative sanctions, which, according to the preliminary draft, can amount to as much as EUR 1.25 million.
The above shows that there are still many uncertainties and that it would be best to refine the draft legislative proposal thoroughly before the government submits it to the Parliament. We are too late now anyway; with a little more time we can avoid painful patching up. Until then, companies and organisations can best start hammering out their internal reporting system. The required prior social consultation takes time. As long as there is no Belgian legislation, the chance 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 case of, for instance, a suspicious dismissal after 17 December 2021.
Key Action Points for Human Resources and In-house Counsel
- Belgium will implement its new system by the Summer of 2022.
- Prepare your company for the establishment of an internal reporting mechanism.
- Avoid retaliation measures against whistleblowers.