What is the scope of application?
The PIA does not only apply to investigations conducted by companies whose primary business involves private investigations but also to internal investigations conducted within a company, such as regarding employee (mis)conduct.
Certain obligations of the PIA therefore do not only apply to specialized internal or external investigation services, but also to HR departments in case of occasional investigations.
Importantly, the PIA also provides for a number of exclusions from its scope of application, such as for the professional activities of lawyers, notaries, bailiffs, journalists and auditors and in case the investigation is mandated by law (e.g., in the framework of the Belgian Whistleblowing Act of 28 November 2022).
What to know?
Requirements for internal investigation services
Specific requirements apply to investigations conducted by so-called "internal investigation services", i.e., in-house services which conduct private investigations on a structural basis.
By way of high-level summary, the members of internal investigation services have to obtain a licence from the Belgian Ministry of Home Affairs, for which they will have to meet certain qualitative and nationality requirements.
Employers who indeed have such internal investigation services in place will thus have to ensure compliance with these obligations.
These licensing obligations do not apply to HR departments, even if they occasionally investigate employee (mis)conduct. These departments however will have to comply with other obligations of the PIA (as set out below).
Obligations regarding the investigation itself
The PIA further imposes certain obligations with respect to the conducting of investigations which in any case need to be complied with.
Employers can for example only conduct investigations into their employees provided that a (written) policy (or similar document) containing the authorisation to carry out a private investigation is in place. This document must also contain the further details on how such private workplace investigations are conducted.
It furthermore is forbidden to conduct an investigation into certain specific areas (e.g., political views, religious views, trade union membership, sexual preference, health, etc.).
The PIA also contains various new and important obligations for the conducting of interviews. The person being interviewed needs to give their (informed) consent and a written report (including mandatory information) of the interview must for example be issued. The individual also has the right to be assisted by a person of choice.
The investigation furthermore needs to be documented in line with the requirements of the PIA, including by establishing an investigation file and by issuing a final investigation report in line with the relevant formalities. It hereby is important to know that in case of legal proceedings conducted on the basis of the results of an investigation, Belgian courts will be entitled to access the entire investigation file (and not just the final investigation report).
What are the sanctions?
Administrative sanctions can be imposed in case of non-compliance with the PIA, including a fine of up to 25,000 EUR. Sanctions due to non-compliance with the GDPR could also apply.
Arguably more importantly, certain breaches of the PIA (e.g., not having a ministerial licence for internal investigation services or investigating prohibited fields of investigation) will automatically result in nullity which implies that the evidence obtained cannot be used in court proceedings.
Other breaches of the PIA (e.g., conducting an investigation without complying with the applicable formalistic requirements) in principle do not result in nullity. The court however is free to determine the evidentiary value of the relevant exhibits. It therefore is possible that a court would diminish the evidentiary value of an investigation that has not been conducted in accordance with the requirements of the PIA.
What is the timeline?
The majority of the PIA provisions entered into force on 16 December 2024 with some exceptions regarding the licensing obligations (if applicable).
Employers furthermore have until 16 December 2026 to establish the internal regulations or policy.
Next steps for employers?
Given these newly imposed obligations and the potential sanctions in case of non-compliance, employers should verify whether any licensing obligations apply and whether their current investigation practices are in compliance with the obligations as imposed by the PIA.
The internal investigation policy should also already be prepared in view of the upcoming deadline of 16 December 2026.
We are closely monitoring all relevant legal developments in this respect, so do not hesitate to reach out should you want to know more!
