Draft Belgian Whistleblowing Act now adopted in Parliament!

The draft Belgian Act on whistleblowing for the private sector, which transposes EU Directive 2019/1937 (‘the Whistleblowing Directive’) into national legislation, has finally been adopted in Parliament. The Act still has to be published in the Belgian State Gazette and will enter into force 2 months after its publication.

This date will be crucial as from then all companies employing at least 250 workers must have an internal reporting channel ‘up and running’, and so better be prepared. Companies with between 50 and 249 workers will be granted a little more time, and must set-up an internal reporting channel by 17 December 2023.

The draft Belgian Act, amongst other things, includes the following key elements:

• It extends the material scope of the Whistleblowing Directive with an additional ‘reporting area’, namely in the fight against tax fraud, tax evasion and social fraud.
• It provides for specific damages for whistleblowers who are the victim of retaliatory measures that are equal to a minimum of 18 and a maximum of 26 weeks of salary (and 6 months of salary for the reporting of certain financial breaches). 
• It provides that legal entities or their representatives who (try to) obstruct reporting, breach confidentiality or take retaliatory measures may be punished with a prison sentence of between 6 months to 3 years (which for legal entities will be converted to a fine of up to EUR 576,000) and/or a fine between EUR 4,800 to EUR 48,000.

In summary, companies must, among other things, take the following steps:

• Inform and consult with the works council (or, in its absence, the trade union delegation or, in its absence, the health & safety committee or, in its absence, the employees) before establishing channels and procedures for internal reporting.
• Draft the procedures for internal reporting and follow-up, which will have to be translated into the local language (i.e. Dutch, French or German depending on the seat of operations where the employees work).
• Establish the channels for receiving the reports. These channels can be operated internally or can be ‘outsourced’ to a third party (e.g. an external reporting platform provider).
• Select the means of reporting, i.e. oral and/or written reports. Oral reporting will be possible by telephone (i.e. a hotline) or through other voice messaging systems, and, upon the reporting person’s request, by means of a physical meeting.
• Appoint a ‘reporting administrator’ (‘meldingsbeheerder – gestionnaire de signalement’).
• Keep a record of all reports received.
• Any processing of personal data must comply with the GDPR legislation.

We will of course let you know as soon as the Act is published in the Belgian State Gazette and the ‘clock starts ticking’ for companies with at least 250 workers.

Written by

• Esther Soetens

  Counsel