Roughly a year late, but here we are then: Belgium has finally transposed the Whistleblowers Directive into national law. The Act of 28 November 2022 on the protection of reporters of breaches of Union or national law discovered within a legal entity in the private sector sets out the rules for companies in the private sector (another on 8 December did the same for the public sector). The advantage of Belgium being one of the slowest pupils in the European class is that by now, you will already be quite familiar with the principles of the Whistleblowers Directive, in particular that legal entities with more than 50 employees have to set up an internal reporting channel and procedure for whistleblowing, and that the reports need to be handled by a person or service whose independence is guaranteed and for whom there are no conflicts of interest, etc.
The theoretical advantage of that prior knowledge is that this blog can focus on the topics where Belgium’s Act stand out from the herd, but as per usual, there is not an awful lot there to report. Belgium is not very often a trailblazer when it comes to transposing EU legislation, and this time is no exception. The Act of 28 November 2022 says what it needs to say and not much more.
Which matters can be reported on?
This is probably the only area where the Belgian legislator has shown some positive initiative. The Whistleblowers Directive included a list of areas of EU law that whistleblowers should be allowed to report on, but Member States were free to add other areas. And we did! In Belgium, whistleblowers will also be allowed to report on issues in relation to the combating of tax and social fraud. No definition is given of these notions, which for the employers’ organisations lobbying on it was a good enough reason not to include these areas in the domestic legislation, but the legislator has ignored this suggestion entirely.
What do companies need to do? Are there specific requirements the whistleblowing channel needs to comply with?
On the “how” of the whistleblowing channel, the implementing Act stays very close to the Directive and leaves quite some freedom to employers. The channel needs to comply with a number of requirements, including (i) that there should be different options – including both verbal and in writing – to blow the whistle, (ii) there are guidelines on how to record the report, and (iii) there are time limits to be observed for examining the report and responding to the whistleblower, but all of these stem directly from the Directive.
Within these boundaries, companies still have considerable freedom in relation to the design of the system and how to introduce it. The only requirement is that the relevant employee representatives be involved in the process: the works council (or in the absence thereof, the union), the health & safety committee, or in the absence of all of these, the employees themselves.
The format for the procedure is free: it could be a collective labour agreement at company level, a chapter in the employee handbook, or a separate policy. For reasons of flexibility and ease of later amendment, a separate policy is preferred.
Has Belgium contributed to the debate on whether group companies can share resources?
As you may have read, there has been some discussion as to whether group companies can share resources to set up and manage reporting channels for protected disclosures. The Directive provides this option for companies with up to 249 employees, excluding larger (group) entities from this possibility of pooling resources (for example by setting up the channel at the level of the parent entity). Denmark, one of the first to implement the Directive, wanted to ensure optimal flexibility in its legislation and so included the option of sharing resources for all companies irrespective of size, yet with the power for its Minister of Justice to revoke the scope for group-wide shared channels for larger private companies if it later appears that this is not in conformity with the Directive. France has also deliberately not taken a clear position on the topic (France Updates its Whistleblower Protection to Transpose the EU Whistleblower Directive | Privacy World).
Belgium did not want to get its hands dirty on this and so adopted the time-honoured method of avoiding conflict with the European Commission: the implementing Act has simply lifted the relevant terms straight from the Directive. “Companies up to 249 employees can share resources”.
What about anonymous reporting?
After some hesitation over the status of anonymous reporting, the European legislator decided to leave the decision to the Member States. Some member states allow anonymous disclosures (including France, Spain, Sweden and Denmark), while the Netherlands does not and Germany has provided that there is no obligation to investigate anonymous disclosures but this that should still be done if the company has the capacity to do it.
The Belgian legislator has opted to make following-up on anonymous disclosures mandatory, with an exception for legal entities with less than 250 employees. This threshold is considered justified in light of the potential burden of setting up an anonymous reporting system and the particular difficulties of responding to disclosures made in that way.
Protection against retaliation
Whistleblowers are protected against retaliation. Whistleblowers who are retaliated against will be entitled to receive specific compensation between eighteen and twenty-six weeks’ salary. If the reporting relates to infractions of legislation on financial services, products and markets or the prevention of money laundering, the compensation may amount to six months’ salary, and the employee will even have the right to ask for their reinstatement, a rarity under Belgian law.
It will be up to the employer to prove that any measure taken against the employee is not related to the whistleblowing, regardless of the time that has lapsed between the reporting and the alleged retaliation (despite the National Labour Council’s strong suggestion to consider a time limit for this reversal of the burden of proof, as is more common under Belgian law). There is also no explicit time limit from the act of retaliation within which a claim must be brought.
By when do companies need to act?
The Act was published in the Belgian Official Gazette on 15 December 2022 and will enter into force two months after the date of publication, on 15 February this year. Companies with 50 to 249 employees are given some reprieve: they will have to have set up their internal reporting channel by no later than 17 December 2023 (unless they fall within the scope of the provisions on financial services, products and markets and money laundering legislation, in which case they were already required to have such a channel in place before the implementation of the Directive).
And what if you don’t ?
When it comes to sanctions, Belgium does not mess about: companies which do not comply with the regulations can face sanctions of the highest degree (level 4): administrative fines between 2.400 and 24.000 EUR and even criminal sanctions (fines of 4.800 to 48.000 EUR and/or imprisonment).
The Whistleblower Directive aims to increase compliance with EU legislation, and whistleblowing is deemed to be an essential contributor to compliance. Today, Belgium does not have a whistleblowing culture. Time will tell whether and how quickly this can change, and whether this Act will be sufficient to create this change. For now, we cannot ignore the fact that this obligation will mean a material administrative nuisance for both smaller and bigger companies or that the reversal of the usual burden of proof will place a greatly increased responsibility on employers to be able to demonstrate through retained notes or other evidence that any less favourable treatment or other detriment imposed on the employee was for reasons unrelated to his disclosure.