The Belgian Act on Whistle-blowing for the Private Sector, which transposes the EU Whistle-blowing Directive(1) into national legislation, has finally been adopted in Parliament and published in the Belgian State Gazette on 15 December 2022.

The Act will enter into force two months after its publication, ie, on 15 February 2023.

From then, all companies employing at least 250 workers must have an internal reporting channel up and running, and so must be prepared. Also, companies in the financial sector or with activities related to the prevention of money laundering and terrorist financing will have to install an internal reporting channel by this date regardless of their employee number.

Companies with between 50 and 249 workers have been granted a little more time and must set up an internal reporting channel by 17 December 2023. However, the rules regarding the protection of whistle-blowers will, also for these companies, already apply as from 15 February 2023.

The Belgian Act includes the following key elements, among others:

  • It extends the material scope of the EU Whistle-blowing Directive with an additional "reporting area" – namely, in the fight against tax fraud, tax evasion and social fraud.
  • It provides that whistle-blowers will be protected against any form of retaliation. This protection not only applies for employees, but also for whistle-blowers in any other capacity and to 'facilitators' assisting the whistle-blower in the reporting process.
  • Employees that are the victim of retaliatory measures will be awarded specific damages that are equal to between 18 and 26 weeks of salary. If the report is related to financial breaches or money laundering, then the compensation will be 6 months' salary (or compensation for the actual damage suffered), with the employee having the option to request his/her re-instatement. If this re-instatement is not granted, then he/she will be awarded an additional 6 months' salary.
  • Whistle-blowers, other than employees, must prove the extent of the damage.
  • It provides that legal entities or their representatives who either;
    • do not comply with their obligations on internal reporting and follow-up;
    • (try to) obstruct reporting, breach confidentiality, take retaliatory measures; or
    • initiate abusive proceedings, may be punished with a prison sentence of between six months and three years (which, for legal entities, will be converted to a fine of up to €576,000) and/or a fine between €4,800 to €48,000.

Legal entities or their representatives who do not comply with their obligations on internal reporting and follow-up can also be punished with an administrative fine instead, ranging between €2,400 to €24,000 per employee.

In summary, companies are required to, among other things:

  • inform and consult with the works council (or, in its absence, the trade union delegation or, in its absence, the health and safety committee or, in its absence, the employees) before establishing channels and procedures for internal reporting;
  • draft internal reporting and follow-up procedures, which will have to be translated into the local language (ie, Dutch, French or German depending on the seat of operations where the employees work);
  • establish the channels for receiving the reports – these can be operated internally or can be outsourced to a third party (eg, an external reporting platform provider);
  • select the means of reporting (ie, oral and/or written reports) – oral reporting will be possible by telephone (ie, a hotline) or through other voice messaging systems, and, upon request, by means of a physical meeting;
  • appoint a reporting administrator;
  • keep a record of all reports received; and
  • ensure that any processing of personal data complies with the EU General Data Protection Regulation.

For further information on this topic please contact Esther Soetens at ALTIUS by telephone (+32 2 426 1414) or email ([email protected]). The ALTIUS website can be accessed at www.altius.com.

Endnotes

(1) 2019/1937