[update of an article initially published on 1 December 2022]
The Act of 28 November 2022 implements the European Whistleblower Directive (Directive 2019/1937) in Belgian law for private sector entities.
What is the status of the Act?
The Act of 28 November 2022 on the protection of reporters of breaches of Union or national law established within a legal entity in the private sector was published in the Belgian Official Gazette on 15 December 2022 and will enter into force two months after the day of its publication, i.e. on 15 February 2023.
To which companies do the new obligations apply?
Each legal entity with at least 50 employees must establish an internal channel for reporting breaches in a number of specific areas. Legal entities in the private sector with 50 to 249 employees have until 17 December 2023 to do so. Legal entities with less than 50 employees do not have to introduce an internal reporting procedure, but they can voluntarily choose to do so. Legal entities in the financial sector must always implement an internal reporting channel, regardless of the number of employees.
How do you calculate the threshold? This is done on the basis of the rules for social elections. Note, however, that the calculation must be done at the level of the legal entity, and not at the level of the technical business unit.
What obligations are introduced?
The main features of the act are as follows:
- The scheme will cover reports on breaches in relation to (1) public procurement, (2) financial services, products and markets, prevention of money laundering and terrorist financing, (3) product safety and compliance, (4) transport safety, (5) protection of the environment, (6) radiation protection and nuclear safety, (7) human and animal food safety, animal health and welfare, (8) public health, (9) consumer protection, (10) protection of privacy and personal data, and security of network and information systems, (11) tax fraud, (12) social fraud, and (13) the rules on the functioning of the European internal market (competition and State aid).
- Reporting should be possible for a wide range of persons. 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 should be able to report infringements.
- You must set up channels and procedures for internal reporting and for their follow-up, after consultation with the competent consultation body (the works council, or in the absence thereof, the union delegation; in the absence of a union delegation, the committee for prevention and protection at work or, in the absence thereof, the workers themselves). You must provide the necessary information on the existence and use of the internal reporting channels.
- Legal entities with 250 employees or more must allow anonymous reporting. Legal entities with fewer employees are free to allow anonymous reporting.
- You must handle and follow up on reports in a timely manner and within certain strict deadlines, and provide feedback to the reporting person.
- The reporting person can report through an internal reporting channel and an external reporting channel. In certain cases, he/she can even report via public disclosure. In each of these cases, the reporter is protected under certain conditions.
- Protective measures apply not only to the reporting person, but also to facilitators and third parties associated with the reporting person.
- Competent authorities for external reports and a federal coordinator will be appointed.
- The provisions touch upon public order; hence, no contractual or statutory derogations are possible.
- Violations of inter alia the rules on setting up internal reporting channels will be eligible for level 4 sanctions under the Social Criminal Code.
And what needs to happen now?
You should prepare for the introduction of an internal reporting channel in your company. Ask about possible service providers for a reporting channel and prepare a draft policy.
We are ready to help you with this!
