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Whistleblower Directive: current state of affairs

Submitted by Firm:
Lydian
Firm Contacts:
Alexander Vandenbergen, Jan Hofkens, Kato Aerts
Article Type:
Legal Article
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WHERE DO WE STAND?

By tomorrow, 17 December 2021, the EU Whistleblower Directive No. 2019/1937 of 23 October 2019 (see Checklist preparation and implementation of procedure for whistleblowers | Lydian) must in principle be transposed into national legislation. Like many other member states, Belgium will not meet this deadline.  

As of January 2022, government negotiations will start on two preliminary draft laws transposing the Whistleblower Directive, one for the private sector under the authority of Minister Dermagne and one for the public sector under the authority of Minister De Sutter. The aim is to adopt the preliminary drafts by the summer of 2022.

The texts of the preliminary drafts are currently not yet made public.

The National Labour Council (hereafter: NLC) and the Central Economic Council (hereafter: CEC) have already given their opinion on the preliminary draft for the private sector on 30 November 2021 (see (only available in Dutch and French)). We summarize below some points of attention. Of course, some things may still change, given the upcoming negotiations on the drafts texts.

WHAT DOES THE NLC’S ADVICE TEACH US?

Material scope  
Currently, the material scope in the preliminary draft would be defined more broadly than what is mentioned in the Whistleblower Directive. In addition to the breaches listed in the Directive (e.g. consumer protection, protection of personal data (GDPR), public contracts, public health,.... ), tax fraud and evasion would have been added on the one hand, and reference would be made to a non-exhaustive list of national laws transposing EU legislation on the other. This is (the only) point where trade unions and employer organizations of the NLC were not on the same page.

Public and private sector 
The regulations apply in both the public and private sectors. The intention is to provide uniform regulations for both sectors.  

Not only employees 
Of course, the regulations will apply to employees/officials who have obtained information in a work-related context, but the self-employed, trainees, ex-employees, directors, shareholders will also be protected if they report a breach in good faith.

Attention to proportionality: not for small businesses and phased entry into force
Only legal entities with 50 or more employees must provide an internal reporting channel and procedure. Also de facto associations would be included under the regulations.

It is therefore not mandatory for smaller organizations, except for financial and economic SMEs, which will have to provide an internal reporting channel and procedure in any case, starting from one employee.

In addition, companies with 50 to 249 employees should have such internal reporting channel only two years after the regulations enter into force (planned to be summer 2024). Companies with 250 or more employees would have to comply with it at the time the regulations enter into force (planned to be summer 2022). 
How the thresholds should be calculated is not yet clear, but currently the legislator seems to be aligning with the calculation rules that apply for social elections.

Companies that belong to an international group will not suffice with the implementation of a global policy. This policy must always comply with the stricter local rules, if any. Therefore, a global standard policy with an appendix per country that provides for the necessary deviations, seems to us a best practice.

Content and implementation of internal reporting channel and procedure 
The regulations impose a number of provisions that an internal reporting channel and procedure must comply with (including both verbal and written possibilities, possibility to have a conversation, specific confirmation of receipt, independent and impartial person/department must be appointed who is authorised to follow up the reports (e.g. compliance Officer, hr,...), but companies certainly still have certain flexibility to implement the system. Culture of the organization, budget and resources are decisive here.

Neither does it stipulate how the rules are to be implemented. This can therefore be done in the work regulations, a collective bargaining agreement or a simple policy. Given the flexibility, we would recommend a policy. In any case, social dialogue must be respected: information and consultation must take place according to the known cascade system: works council, trade union delegation, health and safety committee or directly with the employees of the company.

Optional and free choice
The regulations would not provide for an obligation to blow the whistle. Hence, whistleblowing remains a possibility and not an obligation.

The whistleblower can also choose whether to use the internal procedure or the external procedure, but the intention is that the internal procedure should be preferred as much as possible.

The existing systems, such as the intervention procedures in case of psychosocial risks on the basis of the Wellbeing Act or the individual right to be assisted by a trade union representative, are of course not affected. We also recommend companies to promote the normal known internal communication processes to raise irregularities.

GDPR - anonymous reports? 
Obviously, GDPR must be respected when processing personal data. 

The starting point is that the identity of the reporter must be protected. Whether anonymous reporting is possible is not yet clear, but this would apparently be the intention. The Belgian Data Protection Authority’s position on this however, is not known (yet).

External reporting channel
Belgium will need to appoint an autonomous and independent Whistleblower Authority that will act as an external reporting channel. This authority will be competent to receive reports, provide feedback and offer a follow-up. Furthermore, Member States must provide this authority with adequate resources. Which authority will be competent in Belgium therefore remains to be seen.

Prohibition of retaliatory measures and sanctions 
Whistleblowers should not be subject to retaliatory measures. These are extensive and include not only dismissal, but also e.g. negative evaluation, no promotion or demotion, change of employment conditions, disciplinary sanctions, non-renewal of an employment contract, intimidation or harassment.

Whistleblowers who are able to present facts from which it can be assumed that there is nevertheless a link between the report and the retaliatory measure would be entitled to receive a specific compensation between a minimum of 18 and a maximum of 26 weeks' salary. The NLC recommends, however, to stipulate in legislation that this compensation cannot be cumulated with the compensation for manifestly unreasonable dismissal under CBA No. 109.

Currently, the preliminary draft provides for a reversal of the burden of proof which is not limited in time: the NLC recommends that this reversal should be limited in time (e.g. 12 months as provided in the Wellbeing Act).

Administrative sanctions between 250 EUR and 1,250,000 EUR could be imposed on natural and legal persons who do not comply with the obligations of the regulations and, for example, obstruct a report, take retaliatory , etc. The NLC points out that effective sanctions should also be provided for those who blow the whistle in bad faith.

TO DO

Larger companies would do well to already make timely preparations to implement the internal reporting channel and procedure. For smaller organizations (< 250 employees) we recommend to wait for further legislative developments. We will follow this closely for you and keep you informed.

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