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Clifford Chance

Clifford Chance

Regulatory Investigations and Financial Crime Insights

Are you ready for the new Belgian whistleblower protection rules?

The long-awaited Belgian law transposing the EU Whistleblower Protection Directive enters into force on 15 February 2023 and expands the scope of whistleblower protection compared to the EU framework.

New comprehensive framework completing the existing piecemeal rules

Already in 2019, the EU decided that its member states should provide minimum protection to individuals who report breaches of certain regulations. In response, Belgium had to introduce new legislation, as the existing piecemeal whistleblowing regimes that were already in place for staff members of the federal and Flemish public administrations as well as in the context of money laundering and infringements of the financial legislation did not satisfy the comprehensive framework stipulated by the EU Whistleblower Protection Directive (the "Directive").

After missing the transposition deadline of 17 December 2021, the Belgian legislator adopted the law of 28 November 2022 on the protection of individuals who report breaches of EU or national law detected within a legal entity of the private sector (the "Whistleblower Protection Law"). This law was published in the Belgian Official Gazette on 15 December 2022 and it will enter into effect two months later, on 15 February 2023.

Broader scope of application than imposed by the EU

In terms of scope, the Belgian legislator has not limited itself to the minimum standards imposed by the EU. While the Directive covers individuals reporting breaches of regulations in ten areas identified as essential (e.g., privacy and personal data, product safety and public health), Belgium extended the scope with two additional areas, tax fraud and social fraud. Unlike what is provided in the Directive, the Whistleblower Protection Law also covers all possible violations of (National and European) legal rules relating to the twelve areas without listing the specific applicable regulations to which breaches can relate. Belgium also opted to oblige legal entities in the private sector with at least 250 employees to accept anonymous reports.

Key obligations

As from 15 February 2023, legal entities in the private sector with at least 50 employees will be obliged to (i) set up, or arrange for the outsourcing to external providers of, an internal reporting channel and follow-up procedure, (ii) provide clear and accessible information to their employees regarding the internal and external reporting channels and (iii) ensure confidentiality and appropriate protection for whistleblowers. Contrary to legal entities with 250 employees or more, legal entities employing between 50 and 249 employees that are not active in the financial sector or the prevention of money laundering (i) enjoy a grace period until 17 December 2023 to comply with the new obligations, (ii) are not obliged to handle anonymous reports and (iii) may share resources for receiving reports and carrying out investigations (e.g. by setting up a common reporting tool).

Implications for private companies

Each legal entity in the private sector (broadly defined as "an organisation, incorporated or not, carrying out one or more activities") with at least 50 employees needs to comply with the new obligations. When such Belgian legal entity belongs to an international group of companies, it will not be sufficient to set up one central reporting procedure at group level due to the Belgian and other jurisdictions' particularities compared to the minimum protection laid down at EU level. Any global whistleblowing policy must always comply with the variety of stricter local rules in each country.

The internal reporting channel must in any case be implemented by each legal entity after consultation with the existing employee representative bodies. Although the Whistleblower Protection Law does not stipulate the medium through which implementation must take place, adopting a simple policy (instead of introducing the new procedure as part of the work rules or in a collective bargaining agreement) is the most flexible route.

Our dedicated team would be happy to assist your organisation in complying with the new legislation.

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