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Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
Whistleblowers are protected under Luxembourg law. The Law of February 13 2011 introduced specific provisions to the Labour Code designed to protect employees in both the private and public sector who highlight corruption or abuse of influence in their workplace. They are invited to report relevant information to their superiors or the proper authorities and are protected under the law.
Article L 271(1) of the Labour Code provides that an employee who, in good faith, has alerted his or her superiors or colleagues or any third party cannot be subject to reprisals and his or her employment agreement cannot be terminated due to whistleblowing.
However, whistleblowing remains a challenging issue. The Article 29 working group’s most recent provisions and recommendations are almost 10 years old. Further, the scope of this working group is limited to banking, accounting and internal and external auditing.
There is no precise definition of the term ‘whistleblowing’ in Luxembourg law. Thus, the law is reliant on the Council of Europe conditions in that regard which concern:
- the seriousness of the reported actions or omissions (the actions that the whistleblower reported need to present a serious threat or prejudice to public interest); and
- the whistleblower’s good faith.
These measures have been adopted in soft law. The credit institution, investment firm and loan agreement sector professionals are guaranteed the right to highlight serious and legitimate concerns regarding internal governance.
Confidentiality must be guaranteed and reports given in good faith will not result in responsibility for the whistleblower.
Further, persons working in sectors that are subject to anti-money laundering legislation must – on their own initiative – report any doubts or uncertainty concerning money-laundering offences or terrorist financing within their company.
Whistleblowing has recently become an important topic in Luxembourg due to the Lux Leaks trial, in which employees of one of the Big Four accounting firms leaked confidential information about Luxembourg’s tax rulings to the public. The final outcome of this process will help to define the boundaries and scope of Luxembourg’s whistleblowing legislation.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
As far as is known, self-reporting is not a common practice in Luxembourg and there are no provisions in that regard. However, under Luxembourg law it is possible to negotiate a plea agreement.
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