[updated version of an article initially published on 12 December 2022]
Yet another update is called for regarding the transposition of the European Whistleblowing Directive (Directive 2019/1937) into Belgian law. In this contribution, we outline the state of play for the public sector at the federal level.
What is the status of this legislation?
The Act of 8 December 2022 “concerning the reporting channels and the protection of persons reporting integrity violations in the federal public authorities and in the integrated police” has been published in the Belgian Official Gazette on 23 December 2022 and will enter into force 10 days after its publication, i.e. on 2 January 2023.
Thus, unlike the act for the private sector, it does not provide for a period of two months before it enters into force.
To which federal authorities do the new obligations apply?
The act will apply to “federal public authorities”. This includes federal administrative authorities (e.g. Federal Public Services, Federal Programatory Services and autonomous public enterprises), policy-making bodies (see the Royal Decree of 19 July 2001) and any other agencies or services that depend on the federal government and do not belong to the private sector, such as Federal Ombudsmen and the Data Protection Authority. This enumeration is not exhaustive.
What obligations will be introduced?
The following key principles should be remembered:
- The subject of reporting in the public sector is integrity violations. An integrity violation is:
- either a threat to or violation of the public interest which:
- constitutes a violation of directly applicable Union law, laws, decisions, circulars and internal rules or internal procedures applicable to federal public authorities and their personnel; and/or
- poses a risk to the life, health or safety of persons or the environment; and/or
- amounts to a serious deficiency in the professional duties or management of a federal government agency; or
- an order or advice, knowingly given, to commit an integrity violation listed under (1).
- either a threat to or violation of the public interest which:
- It should be possible for a wide range of individuals to make reports. Not only employees and self-employed persons, but also shareholders, persons belonging to the administrative, management or supervisory body, volunteers, trainees, staff of (sub)contractors and suppliers must be able to report violations.
- Anonymous reporting will always be possible, unlike in the private sector.
- There is no cascading arrangement: the three reporting modes (i.e. internal reporting, external reporting and disclosure) are on an equal footing. In each case, the reporting person is protected under certain conditions.
- In principle, internal reports are made to the federal government agency itself. However, the Federal Internal Audit Service is the responsible reporting channel for the policy-making bodies referred to in the Royal Decree of 19 July 2001 or when a federal administrative authority has not (yet) established an internal reporting channel.
- The external reporting channel is established with the Federal Ombudsmen.
- A federal public authority must establish channels and procedures for internal reporting and for their follow-up, after consultation with the representative trade unions according to the applicable trade union statute.
- The federal government agency must process and follow up reports in a timely manner and within certain strict deadlines, and provide feedback on them to the reporting person.
- Protective measures apply not only to the reporting person, but also to facilitators and third parties associated with the reporting person.
- The provisions touch upon public order; therefore, no statutory or contractual derogations are possible.
And what needs to happen now?
You should prepare for the introduction of an internal reporting channel in your federal government agency. Ask about possible service providers for a reporting channel and prepare a draft procedure.
We are ready to help you with this!
