Whistleblowers – The New 2023 Framework

Tax reform, energy crisis, the implementation of ESG standards, cybersecurity issues, 2023 promises to be rich in changes and upheavals.

2023 will also be whistleblowers’ year. Indeed, Belgium has finally implemented Directive 2019/1937 on the protection of persons who report violations of Union law (whistleblowers directive) for the private sector on November 28th 2022.

The new law covers reporting of unlawful acts or omissions that go against the object or purpose of legal provisions in various fields including (i) public procurements, (ii) services, products and financial markets, (iii) money laundering, (iv) product safety and compliance, (v) transport security, (vi) environmental protection, (vii) public health, (viii) consumer protection, (ix) privacy and data protection or (x) tax or social fraud (this last point being an addition by the Belgian legislator).

The law creates three types of reporting, namely:

- reporting through internal reporting channels (to the hierarchy);

- reporting through external reporting channels (to the competent authorities that may initiate an investigation on such grounds);

- public disclosure (in the event of an absence of effect from an external reporting or in the event of imminent danger).

Undertakings with more than 50 workers shall also be compelled to organize an internal reporting channel and processing procedures that guarantee the protection (and if necessary the anonymity) of whistleblowers. While smaller undertakings are exempted from such a burden, this will not be the case for those active in the financial sector.

In addition, the law provides for whistleblowers’ protection (i.e. any person having a professional relationship with the company) as long as they had reasonable grounds to believe that the information reported on the violations was true at the time of their reporting.

This belief is assessed with regard to a person placed in a similar situation and having comparable knowledge. The author of the report will thus be protected from reprisals.

If the perpetrators of reprisals may be subject to specific criminal sanctions, the misuse of the law by whistleblowers will also expose them to sanctions, particularly with respect to defamation.

Published on December 15th, 2022, the law will enter into force on February 15th, 2023.

However, for undertakings of 50 to 249 workers, the provisions relating to internal reporting and their follow-up will only apply as of December 17th 2023.

This should therefore give time to stakeholders to adapt to this new framework.