Whistleblower protection in Belgium
Whistleblower protection in Belgium
Evelyne Maes[1] and Louise Reyntjens[2]
One month ago, February 15, 2023, the federal "whistleblower act" for the private sector came into force. This is one of the six laws[3] that have currently been issued in Belgium to transpose the European Whistleblower Directive (Directive 2019/1937).
You read that right: one of the six. The division of competences for transposing the Whistleblower Directive is not a simple task. Figuring out which law protects a Belgian whistleblower in a specific situation thus requires an analysis of the rules regarding the division of competences. Moreover, at this moment there are also gaps in that protection, so that not all whistleblowers are (already) protected.
Below we explain which requirements the European Whistleblower Directive sets and how the federal and Flemish legislators shape the whistleblower protection.
What is required by the Whistleblowing Directive?
The Directive requires Member States to provide protection for whistleblowers who report three types of infringements:
- infringements relating to certain fields, such as public procurement contracts, public health, or environmental protection (10 in total);
- infringements affecting the financial interests of the Union;
- infringements related to the internal market.
Whistleblower protection consists of several elements. Firstly, the whistleblowers must be able to contact someone. Internal and external reporting channels must be set up. In principle, the obligation to set up internal reporting channels only applies to legal entities in the private sector with 50 or more employees. Legal entities in the public sector are always required to set up an internal reporting channel. These reporting channels must ensure that the necessary follow-up is given to the report. They must verify the accuracy of the report and address the infringement, including through measures such as an investigation, prosecution, etc. Finally, Member States should ensure that certain protective measures for whistleblowers are put in place, such as a prohibition on retaliation. The directive had to be transposed by 17 December 2021, and at the latest at 26 November 2023 for legal entities in the private sector with 50 to 249 employees.
The Belgian whistleblower protection and the division of competences
The Whistleblowing Directive imposes both protective measures for whistleblowers as well as the follow-up of the report, and thus the enforcement of substantive legislation. The competences for issuing protective measures for whistleblowers and the power to follow up on a report belong to different entities. The enforcement of legislation is a competence of the federal government, the communities and the regions, each for the matters for which they are competent.
In the federal law on the private sector, it seems – considering the unclarity of the law and preparatory documents – that the choice has been made to let the matter on which the whistleblower reports an infringement, be decisive to determine whether or not the (entire) federal law applies. If the whistleblower reports an infringement of federal law, federal law applies. If the whistleblower reports an infringement of community or regional law, the federal law applies only partially. The rules on external reporting in the federal law do not apply when reporting infringements of community or regional matters.
For the regulation in the public sector, another criterion has been chosen: the federal law on federal public services, including the integrated police (hereafter referred to as the "federal law on the public sector") and the decree on the Flemish public sector[4] are both applicable to the entire sector.[5] The decisive criterion for the Flemish decree is the authority that commits the infringement that is reported. The question whether the report relates to a federal or Flemish matter is irrelevant for the applicability of the decree. When following up on the report, the Flemish government will have to cooperate with the federal government if the report concerns a federal competence (e.g. public procurement). The federal law on the public sector states less clearly that the law is applicable in any case, even if the report relates to a Flemish matter.
Which reports are covered?
Not all reports from all whistleblowers are protected.
Firstly, whistleblower protection only applies to reports from certain reporters, namely those who have an employment relationship[6] with the relevant private or public body, but also certain external parties, such as colleagues or family members of the whistleblower.
Secondly, whistleblower protection only applies to certain reports. For example, the federal law on the private sector applies only to reports of infringements in specific areas (14 in total).[7] Persons reporting infringements in other areas do not enjoy whistleblower protection. In the preliminary draft of the law, the legislative department of the Council of State rightly pointed out that the lack of a protection regime for these whistleblowers may be problematic in the light of the principle of equality.
The whistleblower protection in the public sector is different. With the exception of the Decree of the German-speaking Community, the other regulations on the public sector provide for a very broad scope. For example, the federal law on the public sector applies to reports of so-called "integrity infringements". These are acts that (i) pose a threat to the public interest, (ii) infringe the regulations applicable to the Federal Public Service, (iii) pose a risk to individuals or the environment, or (iv) demonstrate a serious infringement of professional obligations. The decree on the Flemish public sector applies to reports of acts that are unlawful and undermine the purpose or application of regulations. In view of the principle of equality, such a wider scope seems appropriate.
What protection do whistleblowers enjoy?
All the legislative initiatives listed above provide for similar protection mechanisms, imposed by the European directive: the obligation to set up internal and external reporting channels, and certain protective measures such as a prohibition on retaliation. The federal law on the private sector also provides for a remarkable form of a recovery measure in the event of dismissal as retaliation, namely the possibility of being rehired.
Several standards accept anonymous reports. Legal entities in the private sector are only required to accept anonymous reports via an internal reporting channel if they have more than 250 employees. This was considered justified in the light of the burden of setting up a system to deal with anonymous reports. The question arises whether a system to deal with such anonymous reports is not all the more necessary in small(er) companies. In a larger company, it will usually be easier to guarantee a certain degree of anonymity to the whistleblower. Thus, the whistleblower of a company with fewer than 250 employees who wants to remain anonymous has no choice but to report the infringement externally.
What next?
The various authorities and whistleblowers will have to work their way through the rules regarding the division of competences. For example: the choice of a broad material scope in the decree on the Flemish public sector can only be encouraged in light of the principle of equality. But in order to enforce all these reports, the Flemish public authorities will necessarily have to cooperate with the federal authorities with regard to the follow-up of a report regarding an infringement of federal matters.
In addition, we are especially looking forward to see whether the communities and regions will want to provide broader protection to whistleblowers in the private sector than the federal legislator.
Our team closely monitors all these developments and is ready to advise you on this, and on whistleblower protection in general. For questions, please contact Evelyne Maes at evelyne.maes@aurionlaw.be.
[1] Partner at Aurion law firm, visiting professor at ULiège (discrimination law) and at UCL-Université Saint-Louis (Seminar Legal Theory).
[2] Lawyer at Aurion law firm, voluntary scientific assistant KU Leuven.
[3] Federal: the Law of 28 November "on the protection of reporters of infringements of Union or national law established within a legal entity in the private sector" and the Law of 8 December 2022 "on the reporting channels and the protection of the reporters of integrity infringements in the federal public authorities and in the integrated police"; Flanders: the decree of 18 November 2022 "amending the Provincial Decree of 9 December 2005, the Decree of 22 December 2017 on local government and the Administrative Decree of 7 December 2018, with regard to whistle-blowers"; German-speaking Community: the Decree of 21 February 2022 "establishing various information and complaint management tools in the German-speaking Community"; French Community: the Decision of the Government of the French Community of 6 July 2022 “laying down various provisions concerning the report, by a staff member, of an irregularity within a service of the Government of the French Community or a public utility institution belonging to the Committee of Sector XVII”; Walloon Region: Decree of the Walloon Government of 13 October 2022 "containing various provisions concerning the report of an irregularity within a service of the Walloon Government or a public utility institution to which the Decree of 22 January 1998 on the staff regulations of certain public utility institutions belonging to the Walloon Region is applicable".
[4] The decree of 18 November 2022 "amending the Provincial Decree of 9 December 2005, the Decree of 22 December 2017 on local government and the Administrative Decree of 7 December 2018, as regards whistle-blowers".
[5] With some exclusions for the federal public sector, such as the judiciary.
[6] Including former and future employees.
[7] These areas are: public procurement; financial services, products and markets and prevention of money laundering and terrorist financing; product safety and product; 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 network and information systems; combating tax fraud; social fraud prevention; reports of infringements affecting the financial interests of the Union as referred to in Article 325 TFEU and further specified in relevant Union measures; reports of infringements related to the internal market, as referred to in Article 26(2) TFEU, including infringements of Union rules on competition and state aid. See Article 2 of the law.