1. LEGISLATION | NOTABLE CASE LAW
1.1. Specific whistleblowing legislation
Apart from a few scattered references, there was no specific general legislation providing for whistle- blower protection until May 2, 2023. Indeed, it was on May 2, 2023 that the Chamber of Deputies of the Grand Duchy of Luxembourg adopted Draft Law 7945 (only available in French here) ('the Draft Law') to transpose the Directive on the Protection of Persons who Report Breaches of Union Law (Di- rective (EU) 2019/1937) ('the Whistleblowing Directive') into Luxembourg law. Thereafter, on May 16, 2023 the Draft Law was enacted as Law of 16 May 2023 Transposing the Whistleblowing Directive (only available in French here) ('the Law'), following the decision on the dispensation of a second con- stitutional vote by the Council of State. The Law was published in the Official Gazette on May 17, 2023, and entered into force on the fourth day after its publication.
1.2. Sector-specific whistleblowing legislation
Despite the absence of a real legislative framework for the protection of whistleblowers, there were some specific provisions establishing the obligation for certain persons to report certain facts or acts and, at the same time, the protection measures they should enjoy:
- Law of 12 November 2004 on the fight against money laundering and terrorist financing transposing Directive 2001/97/EC of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laun- dering ('the AML/CFT Law'); and
- Law of 5 April 1993 on the financial sector, as amended ('the Financial Sector Law'). The Financial Sector Law is also supplemented by certain provisions, such as Article 8(2) of Law of 23 December 2016 on Market Abuse, as amended.
1.3. Additional applicable legislation
The Luxembourg Labor Code (only available in French here) ('the Labor Code') also provides for cer- tain cases in which the whistleblower must benefit from specific protection from any reprisals, for example the termination of the employment agreement:
- in terms of safety at work (Article L.312-7 (1) of the Labor Code);
- in matters of sexual harassment (Article L.245-5 (2) of the Labor Code), moral harassment (Article L.246-4 (2) of the Labor Code), and discrimination (Article L.241-8 of the Labor Code); and
- in matters of corruption (Articles L.271-1 and L.271-2 of the Labor Code).
The Luxembourg Criminal Code (only available in French here) ('the Criminal Code') also provides some provisions:
- Article 140 of the Criminal Code provides that any person having knowledge of a crime, which could in its effect be limited, or whose authors will commit other crimes, is required to inform the relevant authorities; and
- Article 23(2) of the Criminal Code specifies that any official agent, employee, or agent in charge of a public service mission has to report about any crime or offense of which they become aware during the execution of their missions.
1.4. Guidelines
Both the Supervision Commission of the Financial Sector ('CSSF') and the Insurance Regulator ('CAA') have defined guidelines for whistleblowing procedures:
- CSSF: the procedure is mentioned in Circular CSSF 12/552 as amended; and
- CAA: a form is available on the CAA's website concerning
the following provisions:
- under Article 4(o) of the Law of 7 December 2015 on the insurance sector, as amended; and
- under Article 8-3 of the AML/CFT Law.
For both procedures, employees and former employees of a company under the supervision of the CSSF or the CAA may apply directly to the institution concerned. In such a case, the employee should first follow any internal procedure (as the case may be) or, otherwise, follow the procedure de- scribed by the relevant institution.
1.5. Case law
The case law in Luxembourg on the protection of whistleblowers is very limited, as only few deci- sions have provided some guidelines.
We can refer to the following decisions, which are based both on the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, as amended by Protocols No. 11 and No. 14 and supplemented by Protocols No. 1, 4, 6, 7, 12, 13, and 16 ('European Convention on Human Rights'), but also on the decisions of the European Court of Human Rights which, since 2008, has issued numerous decisions on the present topic:
- Court of Appeal, Decision No. 117-17 of March 15, 2017;
- District Court of Luxembourg, Penal Chamber, Decision of June 29, 2016;
- Court of Cassation, Decision No. 3911 (only available in French here) and Decision No. 3912 (only available in French here) of January 11, 2018;
- Administrative Court, Decision No. 36947 of November 15, 2016;
- Administrative Court, Decision No. 36847 of November 15, 2016 (overturned in appeal); and
- Administrative Court, Decisions No. 40884, 40885, 41043, 41056, 41069, and 41073 (over- turned in appeal) of September 29, 2020.
These various decisions are based in particular on Article 10 of the European Convention on Human Rights concerning the protection of freedom of expression, which every individual must have. In par- ticular, it was pointed out that the exercise of this freedom, which includes, in particular, the free- dom to receive or impart information, may not be subject to conditions, restrictions, or penalties prescribed by law unless they constitute measures necessary in a democratic society, in particular for the protection of the reputation or rights of others, to prevent the disclosure of confidential in- formation. A balancing of the interests involved is therefore necessary. Consequently, the respective weight of the harm caused to a party by the disclosure in question and the interest of the public in obtaining the information concerned must be assessed, considering the principle of proportionality between the harm caused by the disclosure and the defense of the public interest.
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