European Commission proposes whistleblower protection law

Luxleaks, Dieselgate, Panama Papers, etc. Large-scale scandals brought to light by whistleblowers – people speaking up when they encounter, in the context of their work, wrongdoing that can harm the public interest – have multiplied over the past few years.

This did not escape EC’s attention. It prepared a proposition of a Directive containing protection mechanisms for whistleblowers. Until that, European law did not provide any general legislation about whistleblowers.

In Belgium, the protection only applies to specific sectors. For example, a law of 13 September 2013 was adopted to protect whistleblowers working for the federal civil service. Recently, the FSMA issued internal regulations providing protection mechanisms, applicable since 3 January 2018 to certain financial services firms, such as Pension Funds.

Those to which these specific regulations do not apply can rely on the case law of the European Court of Human Rights.

The EC’s Directive Proposal focuses on two main protection systems :

  1. A three tier reporting system of :
  • Internal reporting channels ;
  • Reporting to competent authorities, if internal channels do not work ;
  • Public/media reporting, if no appropriate action is taken after reporting through other channels.
  1. Prevention of retaliation and effective protection :
  • All forms of retaliation (dismissal, non-renewal of a contract, etc) are forbidden and must be sanctioned ;
  • A whistleblower suffering retaliation should have access to free advice and adequate remedies ;
  • Burden of proof reversed : the person or organization must prove that they are not acting in retaliation against the whistleblower ;
  • Whistleblower are exempted from liability for disclosing the information.

The Directive Proposal foresees its transposition in national laws for May 2021.

There is thus time to prepare, but stay tuned ! We will inform you about further developments on this subject.

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