An update on the transposition of the European Whistleblower Directive (Directive 2019/1937) is appropriate. Belgium had to transpose this Directive for the private and public sectors by 17 December 2021. It did not meet that deadline, which led to the European Commission starting an infringement procedure. The Belgian Council of Ministers then approved the federal draft act for the private sector on 25 February 2022. On 17 December 2021, the Flemish Government also published the draft decree on whistleblowers, which lays down rules for the implementation of the Directive in the public sector, especially for the Flemish Government and local authorities. On 18 January 2022, the Flemish Supervisory Commission for the Processing of Personal Data issued its advice no. 2022/006 on the draft decree.
The European Commission sent a letter of formal notice to Belgium on 27 January 2022 under the infringement procedure, demanding transposition of the Whistleblower Directive. Belgium now has two months to transpose the Whistleblower Directive before the Commission can send a reasoned opinion. Belgium is not the only poor student: the Commission’s letter was also sent to 25 other Member States.
The commencement of the infringement procedure seems to have made an impression because, in the meantime, the Council of Ministers approved the federal draft act for the transposition of the Whistleblower Directive for the private sector on 25 February 2022. We have previously reported on the draft act (see our contribution of 15 December 2021). In a subsequent phase, the Council of State will issue its opinion on the draft act. The goal would be to have the act adopted by the House of Representatives at the end of March.
Meanwhile, at the Flemish level, a draft decree on whistleblowers has been published. The draft decree was approved by the Flemish Government on 17 December 2021.
The Flemish draft decree of 17 December 2021 focuses on the public sector and should allow for reports to be made within the Flemish Government and local authorities. The draft decree amends the Provincial Decree of 9 December 2005, the Decree of 22 December 2017 on local government and the Administrative Decree of 7 December 2018. The Provincial Decree and the Decree of 22 December 2017 already contained a limited whistleblower arrangement. These provisions will be deleted and will be elaborated more extensively in the Administrative Decree.
In the meantime, the Flemish Supervisory Commission for the Processing of Personal Data (Vlaamse toezichtcommissie voor de bescherming van persoonsgegevens – VTC) has issued its advice on the draft decree. An extensive explanation can be found here. In addition to the VTC’s advice, the Minister responsible for Home Affairs, Bart Somers, also requested the advice of the Social and Economic Council of Flanders (SERV) and the Association of Flemish Cities and Municipalities (VVSG).
The SERV did not issue any advice because of the limited socio-economic relevance of the issue.
The VVSG recommends an implementation period of at least one year to allow local administrations sufficient time to apply the legislation. Furthermore, the VVSG proposes some organisational adaptations. For example, it is not in favour of having the head of staff act as an internal reporting channel on every occasion, nor is it in favour of locking the collaboration between administrations for the organisation of the internal reporting channel into an existing intermunicipal collaboration or an intermunicipal association yet to be established. Finally, the VVSG criticises the fact that there is no sanction mechanism for whistleblowers who make a reckless report purely to cause damage or to escape an impending sanction.
The draft decree will now be negotiated by the social partners. Subsequently, the Council of State will also issue its advice.
Walloon and Brussels-Capital Regions
For the time being, there are no draft acts at the Walloon or Brussels-Capital level.
We will keep you informed of new developments. We are also happy to assist you in implementing a whistleblower policy within your organisation.