Consequently, although undertakings up to 249 employees (outside the financial sector) have a bit more time to adapt, it is more than time for targeted stakeholders to adapt to the changes introduced by this new Belgian Whistleblower legislation.

Belgian implementation of the EU Whistleblower Directive

A. The Whistleblower Act

1. Entry into force

On 15 December 2022, the Act of 28 November 2022 on the protection of persons who report breaches of national or Union law within legal entities in the private sector ("Whistleblower Act") was published in the Belgian Official State Gazette (FR/NL).

The Whistleblower Act entered into force on 15 February 2023, i.e., two months after its publication, it being noted that certain obligations will only apply to undertakings with 50 up to 249 works as from 17 December 2023.

2. Material scope of application

The Whistleblower Act establishes the protection of persons reporting the following:

• Breaches related to (a) public procurement; (b) financial services, products and markets and the prevention of money laundering and terrorist financing; (c) product safety and conformity; (d) transport safety; (e) environmental protection; (f) radiation protection and nuclear safety; (g) food and feed safety, animal health and welfare; (h) public health; (i) consumer protection; (j) protection of privacy and personal data, and the security of networks and information systems; (k) the fight against tax fraud; and (l) the fight against social fraud; it being noted that any infringement of legal or regulatory provisions or directly applicable European provisions, as well as any infringement of provisions adopted in implementation of the above provisions fall within the scope of the Act
• Breaches affecting the financial interests of the European Union, and, as applicable, implementing national provisions
• Breaches relating to the internal market, including the rules on competition and State aid

3. Personal scope of application

The Whistleblower Act seeks to protect a wide range of individuals and entities, among others:

• Whistleblowers working in the private sector who have obtained information about violations in a professional context (e.g., all types of employees, self-employed individuals, shareholders and members of the administrative, management or supervisory body of a company, any person working under the supervision and direction of contractors, subcontractors and suppliers…)
• Whistleblowers whose employment relationship has ended since disclosure and those whose employment relationship has not yet started (in case information on violations was obtained during the recruitment process or pre-contractual negotiations)
• Facilitators and third parties who are connected to the whistleblowers and who are at risk of retaliation in a professional context (i.e., colleagues or relatives)
• Legal entities owned by or connected to the whistleblowers in a professional context

In addition, the relevant provisions of the Whistleblower Act are also applicable to the following persons, subject to the application of more favorable protection measures for the whistleblower:

• Whistleblowers who pass on information obtained outside a professional context, when reporting a violation in the field of financial services, products and markets and violations in the field of prevention of money laundering and terrorist financing
• Any organization, whether or not it has legal personality, which comes under the jurisdiction of the Federated Entities insofar as a matter is not regulated by the legislation of the regions and communities and comes under the jurisdiction of the Federal State.

B.  Compliance

1. New obligations linked to internal reporting

Legal entities in the private sector with 50 or more employees (with a specific calculation method to determine this employee headcount) and legal entities that offer financial products or services and/or are subject to terrorist financing and money laundering legislation (regardless of their number of employees) must establish channels and procedures for internal reporting and for the follow-up of reports. As the provisions touch upon law and order, no contractual or statutory derogations are possible.

Legal entities which employ fewer than 50 employees have no legal obligation to establish channels and procedures for internal reporting (unless a Royal Decree provides otherwise).

Legal entities have an obligation to accept and follow-up on anonymous reports, with the exception of legal entities with less than 250 employees that are not obliged to accept anonymous reports.

2.  Deadline to comply

3. External reporting and public disclosure

In addition to the internal reporting channels, the Whistleblower Act also establishes external reporting channels, as well as public disclosure. It is possible to report directly through the external reporting channels without having first used the internal reporting channels.

For public disclosure, certain conditions apply to benefit from the protection under the Whistleblower Act:

• The person first reported internally and externally, or directly externally, but no appropriate action was taken in response to the report(s) within the relevant timeframe(s), or
• The reporting person has reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public interest, or
• The reporting person has reasonable grounds to believe that in the case of external reporting, there is a risk of retaliation or there is a low prospect of the breach being effectively addressed, due to the particular circumstances of the case (evidence may be concealed or destroyed, authority may be in collusion with the perpetrator of the breach…).

4. Employment law aspects

Employee headcount calculation will be determined in line with the calculation method applied in the legislation on the social elections (but at the level of the legal entity), as follows:

• Number of calendar days during which the employees were in service during the reference period (cfr. Dimona declarations), divided by 365
• Reference period = period of four quarters preceding the quarter in which the notice announcing the date of the social elections is posted - according to the  Federal Government Service Economy, the last four quarters before the calculation date should be taken into account.
  For the 2024 social elections: from 1 October 2022 to 30 September 2023
• Specific calculation rules apply, e.g., with respect to interim employees

The reporting channels and procedures should be set up after consultation with social partners, i.e., the works council, or in the absence thereof,  the trade union delegation, then the Committee for prevention and protection at work, or, in the absence of all of these, the employees directly.

The internal whistleblowing procedure must be available for employees in local language (Dutch, French or German). The sanctions for non-compliance vary according to location and consist in:

• Flemish Region: (absolute) nullity without prejudice to certain rights of the employees (translation has no retroactive effect)
• Walloon Region: (absolute) nullity (translation has no retroactive effect)
• Brussels Capital Region, German-speaking Region and municipalities with language facilities: (relative) nullity (translation with retroactive effect possible)

5. Sanctions in case of non-compliance

Employers who do not comply with the provisions of the Whistleblower Act can face sanctions of the highest degree (level 4) under the Social Criminal Code: (i) imprisonment sentences ranging from six months to three years and/or a criminal fine ranging from EUR 4,800 to EUR 48,000 or (ii) an administrative fine ranging from EUR 2,400 to EUR 24,000.  

In addition, legal entities in the private sector and their personnel may face imprisonment of six months to three years and/or a fine of EUR 4,800 to EUR 48,000 if they commit certain specific offences (e.g., obstructing the reporting process).