17 December 2021 marked an important date in the context of the enhanced protection of the so-called whistleblowers. By this date, Member States were required to bring into force the first set of laws, regulations and administrative provisions necessary to comply with the Whistleblowing Directive (Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019, hereinafter the “Directive”).

Not only Belgium, but the vast majority of the Member States did not succeed to comply with this deadline - only Sweden and Denmark finalized the transposition process to this date.

On 30 November 2021, the Central Council for Business (“Conseil Central de l’Economie” / “Centrale Raad voor het Bedrijfsleven”, hereinafter the “CCB”) and the National Labour Organization (“Conseil National du Travail”/ “Nationale Arbeidsraad”, hereinafter the “NLO”) have issued their opinion (see here) on the preliminary draft law on the protection of persons who report infringements of Union or national law committed within legal entities in the private sector.

In general, the Directive aims to provide minimum standards of protection to individuals who have obtained information through their work-related activities and, in the context thereof, report breaches of EU law internally (inside the organization) or externally (to public authorities).

The Directive covers reports made on breaches with respect to European Union law (such as public procurement, public health and consumer protection). As it concerns minimum harmonization, it is up to the member states to decide whether or not to extend the protection to other areas. The preliminary draft law adopts the material scope of the Directive, with only one additional area: the fight against fraud and tax evasion. In case the final version of the law would not further extend the protection, the Whistleblowing policies issued at the level of the entities could allow the notification of other, purely national matters (such as harassment and bullying) through their reporting channels. In this format, reporting persons would however not be able to benefit from the legal protection against retaliation. Finally, we highlight that within the NLO, the employee and employer representative organs failed to reach a unanimous view on the material scope to be defined in the law. The employee representatives favor a non-exhaustive list of ‘example’ topics that can be reported. The employer representatives however are ardent supporters of limiting the use of the regulation to an exhaustive list of topics, arguing that the government should be committed to both limiting the use of over regulation (gold-plating) and securing legal certainty by not leaving the scope open ended.

Legal entities in the private sector with 50 or more workers are obliged to set up internal reporting channels. The legal entities in the private sector which do not exceed the threshold of 50 workers do, in principle, not have to install internal reporting channels. Belgium could subject these entities to this obligation, but it is unlikely this will be enforced since it is not provided for in the preliminary draft law. Furthermore, in the opinion of the CCB and the NLO, the importance of social dialogue when introducing reporting channels is emphasized. All the more reason to upkeep that “50 or more workers” threshold, as it would perfectly align the obligation to set up internal reporting channels, on the one hand, with the obligation to set up a first level of employee representative bodies (i.e. the Committee for Prevention and Protection at Work), on the other hand.

The threshold of 50 workers does not apply to the legal entities in the public sector, so that in principle all public entities should set up internal reporting channels. This position is regretted by the NLO. The NLO would like to avoid any incoherencies between the public and private sector, especially with respect to the scope of both laws. 

The Directive leaves it up to the member states to decide whether legal entities and competent authorities are required to accept and follow up on anonymous reports. The preliminary draft law allows anonymity. However, the CCB and the NLO note that this feature would render the communication with the reporting person much more complex, and that more expensive platforms would need to be set up. In this regard, they specifically request the lawmakers to provide exceptions for SMEs (50-249 employees). To keep the whistleblowing rules and obligations ‘proportionate’ for SMEs, compared to larger companies, they are requesting to no require SMEs to (also) foresee complex and expensive (external) platforms to allow for anonymous reporting. Internal reporting channels are to be favored.