The Belgian Whistleblowers Law: Initial Assessment - Already A Corrective Law And Many Legal And Practical Questions, Particularly Within International Groups

Since 17 December 2023, all Belgian companies with at least 50 workers are required to set up an internal whistleblowing procedure. This procedure enables employees to alert their employer about any (suspected) breaches of various laws, including social or tax fraud.

Whistleblowers (as well as those close to them and those who have 'facilitated' the alert) can benefit from very broad protection against all forms of reprisal following the alert. The people appointed within the company to deal with alerts are required to guarantee the confidentiality of the information provided by whistleblowers, including their identity. The reporting channel must meet very strict conditions in order to ensure confidentiality and the security of exchanges. Companies with at least 250 workers must allow anonymous reporting. Violation of these obligations carries severe penalties, ranging from fines to imprisonment (at least in theory).

It is estimated that there are around 7,000 Belgian companies with at least 50 workers. However, it remains uncertain whether all these companies have already correctly set up their internal reporting channels, more than a year after the adoption of the Law of 28 November 2022 on the "protection of persons who report breaches of EU or national law within a legal entity in the private sector"¹ (hereinafter the "Law").

It is even more difficult to assess all the consequences of implementing this system on such a vast scale and the potential resulting abuses. It should not be forgotten that in Belgium, the system imposed by the European legislator requires prior consultation with the social bodies, which may prove tricky within certain companies, especially during a period of social elections.

Certain difficulties arose as soon as the Law came into force. For example, it was necessary to specify how to calculate the threshold of 50 workers, above which an internal whistleblowing channel must be set up. Should the number of workers be considered at the level of the technical operating unit or the legal entity? At what point in the year should this calculation be made? The initial text of the Law did not provide clear guidance.

Fortunately, on 9 February 2024², the legislator passed a corrective law amending the existing legislation to put an end to this legal uncertainty.

The corrective law confirms that the calculation of the threshold of 50 workers must be carried out at the level of the technical operating unit, stating that "undertaking" must be read within the meaning of article 14 of the law of 20 September 1948 on the organisation of the economy³ and article 49 of the law of 4 August 1996 relating to the well-being of workers during the execution of their work⁴.

In terms of reference point in time, starting from 1 January 2025, each "undertaking" will need to verify every 1^st January of each calendar year whether it exceeded the threshold of 50 workers during the four quarters of the previous calendar year (from 1 January to 31 December), using the method described in article 7, §§ 1 and 2, of the law of 4 December 2007 on social elections⁵.

If the threshold is exceeded, the company must establish an internal whistleblowing channel. If it does not, it is exempt until the threshold is exceeded at the future verification (1 January)..

However, the practical application of this exemption continues to raise new questions. Consider a scenario where a company reaches the threshold in the first year, falls below it the following year, and then exceeds it again the subsequent year. Should the platform be activated, deactivated, and then reactivated? How should this situation be handled with regard to workers? From a compliance point of view, it would be advisable to anticipate ahead a possible exceeding of the threshold on the 1^st January to come.

Other practical questions are being asked by international groups that our firm is helping to implement whistleblowing systems in Belgium and other EU countries (for more details, see: Whistleblowing | Fieldfisher).

In this respect, the implementation of a Europe-wide whistleblowing policy raises numerous legal and practical challenges and constraints, starting with the fact that each Member State has adopted (or brought into line) its own national legislation, which differs between the EU Member States⁶. For example, in Belgium, reporting on alleged social and/or tax fraud falls under the material scope of the Law which may not be the case in other Member States.

It is therefore necessary to (regularly) check the (new) obligations in force in each country, particularly for international groups⁷ operating in different European countries, whose whistleblowing policy may no longer be compliant from one day to the next.

Another constraint arises from the obligation, for each company with at least 250 workers, to appoint a separate delegate within that entity to receive alerts and carry out any investigations ('gestionnaire de signalement' or 'meldingsbeheerder' according to the Law), even if the entity is part of a group that already has such a delegate. Other Member States may be more flexible in this respect. For instance, although not explicitly provided in the German law and contrary to the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, the respective explanatory memorandum of the German law clearly mentions that it is possible to share a same respective delegate (as a "third party" in the meaning of the German law⁸) in corporate groups.

In the same vein, there is the question of whether or not to extend the protection offered by the Law to employees of entities with fewer than 50 workers that are part of a group, and the risk of discrimination that this could cause.

Finally, challenge arises from the existence of numerous "codes of conduct" and "good governance" practises predating the Law. These often go beyond strict legal obligations and are more a matter of good practice or behaviour (for example, managing conflicts of interest and other company policies on gifts). Should the very broad protection of whistleblowers and those close to them provided for in Chapter 7 of the Law therefore be extended to all those who report (suspected) violations of these good practices? Alternatively, should we allow different levels of protection to co-exist where this is already provided for in the "code of conduct" or "good governance"? If so, how should this difference in treatment be communicated within the company?

In conclusion, irrespective of the ethical issues and the obvious legitimacy of the measures aimed at establishing effective whistleblower protection at European level, it must be acknowledged that this process still raises many questions and will no doubt take some time before it is stabilised and properly applied.

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