The clock is ticking for whistleblowing schemes

European Directive 2019/1937 imposes an obligation on the Member States to provide for a legal framework for whistleblowing schemes in the private and public sectors by 17 December 2021 at the latest. In the meantime, there is a draft act for the private sector. Large companies should be preparing to introduce such a scheme.

Belgium will not meet the deadline of 17 December 2021 for the transposition of the European directive on whistleblowing schemes (Directive (EU) No 2019/1937 of 23 October 2019 on the protection of persons who report breaches of Union law – see our previous contribution). On 30 November 2021, the National Labour Council (“NLC”) and the Central Economic Council (“CEC”) issued a joint advice on the draft act relating to the private sector. This demonstrates that the legislator envisages separate acts for the private and public sectors. The advice contains a number a fundamental remarks and recommendations, which make a timely introduction of the measures impossible.

It would, however, be wise for companies to prepare to introduce a whistleblowing scheme. Each company in the public and private sector will have to introduce an internal channel for reporting breaches in a number of specific areas. For companies in the private sector employing between 50 and 249 workers, the deadline is extended, in principle, until 17 December 2023. The majority of companies employing less than 50 workers will not have to introduce an internal whistleblowing procedure. They can introduce one voluntarily, however.

On the basis of the draft act, the following main features can be expected:

  • The scheme will relate to breaches of (national provisions transposing) EU legislation in a wide range of areas, such as public procurement, financial services, products and markets, product safety and compliance, consumer protection, protection of the environment, protection of privacy and personal data, tax fraud and evasion, and competition and state aid.
  • Employees, self-employed workers, shareholders, persons in managerial or supervisory bodies, volunteers, interns, personnel of (sub)contractors and suppliers must be able to report breaches.
  • An internal reporting channel must be introduced in the companies, with respect for the rules on social dialogue.
  • The reporting person should have a choice between the internal and the external reporting channel (and, in certain cases, even public disclosure).
  • Protective measures will apply to the reporting person, facilitators and third parties connected to the reporting person.
  • A federal coordinator for reports will be appointed and a whistleblowing authority will be set up.
  • Breaches, such as the obstruction of reports or reprisals, will be punishable with administrative fines of between EUR 250 and EUR 1,250,000.

The NLC and the CEC have called on the legislator to allow for an additional period of one year for companies to introduce a scheme. It remains to be seen whether this recommendation will be followed.

You are therefore advised to prepare to introduce an internal whistleblowing scheme in your company. Hence, analyse the possible providers of a whistleblowing scheme and prepare a policy.

We are ready to assist you.