6 July 2022 • 27 minute read

Belgium - Whistleblowing Laws in Europe: An international guide

Access the full guide

Written by:Bob Martens Eddy Lievens

1) Local Laws

a) Has the country implemented any laws / regulations on whistleblowing (Local Law)?

Belgium does not have a comprehensive legal framework to protect whistleblowers.

In the private sector, only two procedures are in place, with respect to financial markets and money laundering.

Financial markets: the Belgian Law of July 31, 2017, provides for the notification of actual or suspected violations of financial laws/regulations, where compliance is monitored by the Financial Service and Markets Authority (FSMA). The law imposes an obligation on the persons and entities falling within the scope of the law, and subject to the financial supervision of the FSMA, to provide appropriate internal reporting mechanisms. The specific tasks of the FSMA and procedure regarding whistleblowing are stated in the Royal Decree of September 24, 2017.
Money laundering: the Belgian Law of September 18, 2017, ensures the implementation of the fourth European Directive tackling money laundering. It provides for a similar reporting regime for the private sector to the supervisory authority or to the Cell for Financial Information Processing (CTIF-CFI) in countering money laundering and terrorist financing.

For the public sector, the Belgian Law of September 15, 2013, offers protection to whistleblowers working for federal administrative governments. Abuse or fraud resulting in a breach of integrity reported by the whistleblower must be a threat to or violation of the public good. Former employees who have left the service less than two years previously may also report abuse or fraud. The duration of the protection of the whistleblowers is from two to three years.

Despite the absence of a comprehensive framework, on March 4, 2020, a proposal for resolution was adopted requesting the Belgian federal government to implement the EU Whistleblower Directive.

2) Scope of application

a) What types of wrongdoings are covered by the Local Law? Does it cover breaches of EU law?

The Belgian Law of July 31, 2017, covers whistleblowing of any wrongdoing regarding financial instruments supervised by the FSMA e.g. insider trading, money laundering and terrorist financing.

The Belgian Law of September 18, 2017, covers whistleblowing of any wrongdoing regarding all services supervised by the Cell for Financial Information Processing (CTIF-CFI) regarding money laundering and terrorist financing.

The Belgian Law of September 15, 2013, covers whistleblowing of any wrongdoing consisting of a breach of integrity committed by a member of a federal administrative authority (FAO).

b) Personal scope

Does the Local Law apply to reporting persons working in both the private and public sectors?

The Belgian Law of July 31, 2017, applies to any person (permanent or temporary, internal or external, employee or self-employed employee, statutory staff member, trainee, etc.) who detects actual or potential violations of the financial legislation supervised by the FSMA.

The Belgian Law of September 18, 2017, applies to all legal entities defined as subject entities.

The Belgian Law of September 15, 2013, applies to persons (contractually and/or statutory employed or trainee) working for an FAO or who have previously worked for an FAO, on the condition that notification occurs within two years after termination.

Does the Local Law apply only to breaches that the reporting person became aware of in a work-related context?

The Belgian Law of September 18, 2017, applies to subject entities that become aware of (potential) breaches in a work-related context.

The Belgian Law of September 15, 2013, applies to breaches of integrity in a work-related context.

Does the Local Law also protect: facilitators; people connected to the whistleblower and who could suffer retaliation in a work-related context; and legal entities the whistleblower owns, works for, or is otherwise connected with?

The Belgian Law of July 31, 2017, only protects the reporting person.

The Belgian Law of September 18, 2017, protects the reporting person. Each subject entity shall ensure that its staff, agents and distributors who internally report a transaction they consider atypical, or who report that the entity is unable to fulfil the due diligence requirements, are protected from being exposed to threats or hostile action, and in particular from adverse or discriminatory employment actions.

The Belgian Law of September 15, 2013, only protects the reporting person.

c) Does the Local Law require specific conditions to protect reporting persons?

The Belgian Law of July 31, 2017, requires the reporting person to report in good faith so as not to be sanctioned.

The Belgian Law of September 18, 2017, requires the reporting subject entity to report the information in good faith.

The Belgian Law of September 15, 2013, requires the reporting person to follow a certain procedure. They must first inform their functional or a hierarchical superior honestly and based on a reasonable suspicion of an alleged breach of integrity in the federal administrative authority where they are employed. If the superior, or a counselor of integrity if the reporting person does not want to report to their superior, advises to do so, the reporting person is allowed to notify the Federal Ombudsman.

3) Reporting channels

a) Does the Local Law allow anonymous reports? How are companies/agencies meant to handle them?

The Belgian Law of July 31, 2017, does not specify this possibility. However, the FSMA allows anonymous reports based on the aforementioned Belgian Royal Decree. In that case, the FSMA does not know the identity of the reporting person and cannot contact this person for further information or explanation.

The Belgian Law of September 18, 2017, does not specify this possibility.

The Belgian Law of September 15, 2013, does not specify this possibility.

b) Is there a duty of confidentiality and any derogation from this duty?

The Belgian Law of July 31, 2017, states a clear duty of confidentiality. Unless the individual who has made the report agrees, the FSMA should reject any request for access to, explanation of or communication contained in any administrative document if the publication of the administrative document would undermine the confidentiality of the identity of the person who has made the notification.. In general, pursuant to Article 74 of the Belgian Law of August 2, 2002, the FSMA, the members of its organs and its staff are bound by professional secrecy and may not disclose the confidential information they have become aware of to any person or authority.

Under the Belgian Law of September 18, 2017, financial institutions must not provide the affected customer or third parties with information that is being, will be or has been submitted to CTIF-CFI in accordance with the following articles of the Anti-Money Laundering Law –

Article 47 on the reporting of suspicions
Article 48 on additional information
Article 54 on reports of transactions linked to high-risk countries

Nor must the customer/third parties be informed that money laundering or terrorist financing analysis is being, or may be carried out.

The prohibition against informing the customer or third parties that money laundering or terrorist financing analysis is ongoing or may be started, covers –

internal analysis by the business’s AMLCO to determine in particular if a report should be submitted to CTIF-CFI; and
the external analysis by the CTIF-CFI or by judicial authorities to determine whether there are serious indications of money laundering or terrorist financing.

In accordance with §1 of Article 56 of the Law, the prohibition of disclosure does not apply to notifications from the financial institutions to the National Bank of Belgium (NBB) in its capacity as competent supervisory authority, nor to disclosures for law enforcement purposes. Pursuant to Article 56, §2, 1° of the Law, financial institutions are authorised to share information covered by the prohibition of disclosure mentioned in §1 with other financial institutions belonging to the same group, including branches of these financial institutions established within the territory of the European Economic Area.

On the basis of Article 56, §2, 2° of the Law, the same information may only be shared with financial institutions’ branches or majority-owned subsidiaries that are located in third countries provided that –

those branches and subsidiaries fully comply with the group-wide policies and procedures, including procedures for sharing information within the group, in accordance with Article 45 of Directive 2015/849; and
the group-wide policies and procedures comply with the requirements laid down in this Directive.

Article 56, §2, 3° of the Law authorises financial institutions to inform other financial institutions not belonging to the same group that a transaction carried out by a customer has been the subject of a reporting of suspicions to CTIF-CFI, when the financial institution receiving this information is involved in the same transaction with the same customer.

This authorisation is conditional on the recipient: being subject to equivalent AML/CFT legislation and only using the information for this sole purpose; and being subject to equivalent obligations of professional secrecy and personal data protection.

The Belgian Law of September 15, 2013, does not specify a specific duty. However, the Royal Decree implementing this law states that the Counselor of Integrity performs their duties and assignments confidentially at all stages of the reporting process.

c) Public disclosures: does the Local Law provide for this possibility?

This is not specified in the Belgian Law of July 31, 2017. Due to legal restrictions on professional secrecy, the FSMA does not provide individual feedback on investigations conducted as a result of a report. Appropriate measures and sanctions can be taken against actual infringements. In some cases, these measures or sanctions can usually be made public on the FSMA website. If the FSMA decides to file a complaint with the Public Prosecutor, they can decide to make this information public.

This is not specified in the Belgian Law of September 18, 2017. However, the CTIF-CFI can inform the Public Prosecutor.

This is not specified in the Belgian Law of September 15, 2013. However, the Counselor of Integrity and the Federal Ombudsman have a duty to inform the Public Prosecutor based on the Criminal Procedure Code.

4) Reporting channels: internal

a) Is there an obligation for private and/or public legal entities to establish channels and procedures for internal reporting and follow-ups?

The Belgian Law of July 31, 2017, requires all private and public legal entities supervised by the FSMA to establish appropriate internal procedures for reporting actual or potential breaches.

The Belgian Law of September 18, 2017, requires all subject entities to: develop and implement effective policies, procedures and internal controls proportionate to their nature and size to comply with the provisions of this law, the decisions and regulations adopted for its implementation and the implementing measures of EU Directive 2015/849; and to identify the relevant risks identified at the level of the EU, Belgium and the subject entity itself to limit and manage them effectively. Financial institutions are expected to periodically and permanently monitor the adequacy of the organisational measures implemented to comply with the legal obligation to report suspicions to CTIF-CFI. In this respect, the NBB expects financial institutions in particular to monitor their time limits for reporting suspicions.

The Belgian Law of September 15, 2013, requires every internal component to have one or more Counselors of Integrity.

b) Do internal reporting channels need to allow reporting in writing, orally or both?

This is not specified in the Belgian Law of July 31, 2017. The Belgian Royal Decree, however, states that reports can be made in writing, orally or in person.

The Belgian Law of September 18, 2017, requires subject entities to draft written reports regarding their analysis of atypical facts and transactions. Article 50 of this Law specifies that the information should be submitted in writing or electronically according to the procedures laid down by CTIF-CFI. These procedures are currently included in CTIF-CFI’s information note of October 26, 2017, regarding the disclosure of information to CTIF-CFI.

In practice, the NBB recommends that financial institutions report their suspicions through the secure ORIS site launched by CTIF-CFI on September 1, 2006. For this purpose, the reporting entity receives one or multiple secure access codes under the responsibility of the AMLCO, which are then distributed internally without requiring CTIF-CFI to know the identity of the employee who submits the report. This way, the report is submitted in the name and on behalf of the reporting entity. Additionally, this system enables reporting entities to automate part of the reporting process.

The Belgian Law of September 15, 2013, requires reports to be in writing.

c) Procedures for internal reporting and follow-up: does the Local Law require legal entities to adopt internal reporting systems with the following elements?

Channels able to ensure the confidentiality of the identity of the reporting person and the protection of third parties mentioned in the report:

This is not specified in the Belgian Law of July 31, 2017. The Belgian Royal Decree regarding FSMA notifications states that the FSMA must establish specific communication channels for whistleblowing notifications. These channels are safe and guarantee confidentiality.

The Belgian Law of September 18, 2017, requires all subject entities to develop and implement effective policies, procedures and internal controls proportionate to their nature and size to comply with: the provisions of this law; the decisions and regulations adopted for its implementation and the implementing measures of EU Directive 2015/849; and to identify the relevant risks identified at the level of the EU, Belgium and the subject entity itself to limit and manage them effectively. Article 50 of this Law specifies that the information should be submitted in writing or electronically according to the procedures laid down by CTIF-CFI. These procedures are currently included in CTIF-CFI’s information note of October 26, 2017.

The Belgian Law of September 15, 2013, does not specify any specific channels guaranteeing confidentiality. However, the staff member who has requested advice can turn to the Central Reporting Point at any time if he believes the handling of his request for advice from the Counselor of Integrity does not offer sufficient confidentiality or guarantees of independence.

Acknowledgement of receipt of the report to the whistleblower within seven days of receipt:

This is not specified in the Belgian Law of July 31, 2017. The Royal Decree regarding FSMA notifications states that the FSMA must acknowledge the receipt, but no time frame was specified.

This is not specified in the Belgian Law of September 18, 2017.

This is not specified in the Belgian Law of September 15, 2013.

The designation of an impartial function/team to manage follow-ups on reports and maintain communication with the whistleblower:

This is not specified in the Belgian Law of July 31, 2017. The Belgian Royal Decree regarding FSMA notifications states that the investigating member of the FSMA has to follow-up with the whistleblower after a first analysis of the notification and information, unless the whistleblower does not want to be contacted or the investigating member has reasonable grounds to believe that follow-up would prejudice the protection of the identity of the whistleblower.

This is not specified in the Belgian Law of September 18, 2017.

In the Belgian Law of September 15, 2013, it is stated that the Federal Ombudsman must notify the reporting person of the result of his investigation.

Any other follow-up requirements including those for anonymous complaints:

Not specified under Belgian Law.

A reasonable timeframe to provide feedback, not exceeding three months from acknowledgment of receipt or if no acknowledgement was sent, three months from the expiry of the seven-day period after a report is made:

Not specified under Belgian Law.

Providing clear and easily accessible information on internal reporting procedures and external reporting procedures to competent authorities and/or EU institutions/bodies:

This is not specified in the Belgian Law of July 31, 2017, or in the Belgian Royal Decree.

This is not specified in the Belgian Law of September 18, 2017. However, the yearly report of the CTIF-CFI is easily accessible on its website.

This is not specified in the Belgian Law of September 15, 2013.

Should legal entities take any additional measures in order to comply with the above requirements?

Not specified under Belgian Law.

5) Reporting channels: external

a) Has the country designated a competent authority to receive and investigate whistleblower disclosure and retaliation complaints?

The Belgian Law of July 31, 2017, only appoints the FSMA to receive and investigate whistleblower complaints regarding violations of the law on financial instruments supervised by the FSMA.

The Belgian Law of September 18, 2017, only appoints the CTIF-CFI to receive and investigate whistleblower notifications.

b) Is an independent and autonomous external reporting channel already established in the country?

The Belgian Law of July 31, 2017, only appoints the FSMA to receive and investigate whistleblower complaints regarding violations of the law on financial instruments supervised by the FSMA, which is an independent and external authority. The FSMA has the authority to file a complaint with the prosecutor’s office.

The Belgian Law of September 18, 2017, only appoints the CTIF-CFI to receive and investigate whistleblower notifications.

The Belgian Law of September 15, 2013, only appoints the Federal Ombudsman to receive and investigate whistleblower notifications after the internal filter in the FAO.

6) Processing of personal data

a) Is personal data concerning the reports processed in compliance with local and EU legislation such as EU Regulation 2018/1725 and local privacy laws?

This is not specified in the Belgian Law of July 31, 2017. However, in its privacy policy, the FSMA states that it processes all personal data including data relating to whistleblowing according to the applicable privacy legislation. The received notifications are stored in a confidential and secure system. Access to the system is subject to restrictions ensuring that stored data is available only to individuals within the FSMA for whom access is necessary to perform their professional duties.

The Belgian Law of September 18, 2017, states that all processing of personal data is done according to the applicable privacy legislation. However, it also states that the data subjects cannot have access to their personal data, nor have the right to rectify, the right to forget, the right to data portability, the right to object, or to be notified of data breaches.

The Belgian Law of September 15, 2013, does not specify the legislation applicable for the data processing of the reports.

7) Record keeping of reports

a) Is there any obligation regarding record keeping of reports as provided for by the EU Directive?

This is not specified in the Belgian Law of July 31, 2017. However, in the Belgian Royal Decree of September 24, 2017, procedures for the FSMA are more detailed.

The Belgian Law of September 18, 2017 states that, subject to any information medium, for the prevention, detection or investigation by CFI or other competent authorities of possible cases of money laundering or terrorist financing, subject entities shall retain the following documents and information: (1) the identification data and a copy of the supporting documents or of the result of the consultation of an information source, for a period of ten years from the end of the business relationship with their client or from the date of an occasional transaction; (2) subject to other applicable legislations, the supporting documents and registration data of transactions, which are necessary for identifying and accurately reconstructing the executed transactions, for ten years from the execution of the transaction; and (3) the written report regarding their analysis.

The Belgian Law of September 15, 2013, does not specify the record keeping of reports.

8) Protection

a) Is there any difference between whistleblower protections in the private and public sectors?

The Belgian Law of July 31, 2017, does not make a difference in protection.

The Belgian Law of September 18, 2017, does not make a difference in protection.

The Belgian Law of September 15, 2013, is only applicable to persons working for a federal administrative authority.

b) Are whistleblowers protected against all forms of retaliation including threats and attempts of retaliation? Which forms of retaliation are expressly indicated?

The Belgian Law of July 31, 2017, states two forms of protection. (1) No civil, criminal or disciplinary action can be brought against a person who makes a report in good faith, nor can professional sanctions be imposed on account of this report. This person is not deemed to be in breach of any restriction of the disclosure or communication of information imposed by contract or by law, regulation or administrative provision, and cannot be held liable in any way for reporting this information. (2) Retaliation, discrimination and other forms of unfair treatment or adverse action resulting from or related to the reporting of an infringement, in respect of an employee who, in good faith, reports an infringement or who is accused in the report of an infringement is prohibited. This does not prevent appropriate measures or sanctions from being taken against an employee who has effectively committed an infringement. As a specific form of retaliation, the Law mentions terminating the employment conditions or contract.

The Belgian Law of September 18, 2017, mainly protects the subject entity. It specifies that there will be no breach of any restriction on disclosure of information imposed by contract or by any legislative / regulatory / administrative provision where the disclosure of information is made in good faith to CTIF-CFI by –

a subject entity; or
by one of its directors, members of staff, agents or distributors; or
by the president of the bar association.

Such a disclosure will also not render the entity or its directors, members of staff, agents or distributors liable to any kind of civil or criminal action or to any disciplinary, discriminatory or other adverse employment action. This will be the case even where they were not precisely aware of the predicated criminal activity, and regardless of whether any illegal activity actually occurred. No civil, criminal or disciplinary proceedings may be brought against and no professional sanction may be imposed on the staff member or representative of the obliged entity who submitted a report to the supervisory authority in good faith because they submitted the aforementioned report. This protection shall apply also if the report submitted in good faith mentions information that is or should have been included in a notification of a suspicious transaction.

The Belgian Law of September 15, 2013, protects the reporting person from any changes in the employment relationship. Specific forms of retaliation or measures with a “negative consequence on the employment conditions” are stated as: granting dismissal other than at one’s own request; premature termination or non-renewal of an appointment in temporary employment; not converting a temporary appointment for a probationary period into a permanent appointment if it can be promised; moving or transferring or refusing a request to that effect; taking a measure of internal order; taking disciplinary action; withholding salary increase; withholding promotion opportunities; withholding facilities that other employees will receive; refusing leave; and awarding an unfavorable evaluation.

The protection period starts: for the staff member who reported the alleged breach of integrity, on the date of receipt; for the staff member and staff counselor involved in the investigation, from the date of their involvement by the federal ombudsmen and, where applicable, the experts in the investigation of the alleged breach of integrity; and for the Counselor of Integrity on the date of taking up their position. The duration of the protection period is three years after the completion of the written report of the investigation or after a final judicial decision or for the confidential integrity advisor at the end of their position.

c) Does the Local Law provide for any other measures of support such as those indicated in the EU Directive?

According to the Belgian Law of July 31, 2017, the FSMA may assist the person who reports an infringement with regard to anybody involved in protecting this person from any prohibited measure or treatment, and in particular the whistleblower status of the reporting person in labour disputes.

According to the Belgian Law of September 18, 2017, the competent authorities for investigating and prosecuting money laundering and terrorist financing shall take all appropriate measures to protect directors, members of staff, agents or distributors of obliged entities who report suspicions of money laundering or terrorist financing either internally or to CTIF-CFI from being exposed to threats or hostile action.

According to the Belgian Law of September 15, 2013, a staff member who claims to be a victim of or threatened with a measure resulting from the fact that they reported the alleged breach of integrity or were involved in its investigation may submit a complaint to the Federal Ombudsman during the protection period. The staff member can also ask to be transferred (temporarily) to another FAO.

d) Does the Local Law provide for the necessary measures to prohibit any form of retaliation against whistleblowers?

The Belgian Law of July 31, 2017, only mentions the specific measure to request an employer to reinstate the previous employment relationship. The employer who reinstates the relationship must pay the loss of earnings due to dismissal or change of the employment conditions as well as the employer’s and employee’s contributions. If, in respect of an employee who reports an infringement, there is a measure or treatment that can be considered as a form of retaliation, that employee is entitled to compensation.

The Belgian Law of September 18, 2017, aims to protect reporting entities against threats or hostile actions. Thus, it is legally prohibited for the Public Prosecutors, investigating judges, foreign services that are counterparts of CTIF-CFI, OLAF, the Prosecutor at a labour tribunal, SIRS-SIOD, the Minister of Finance, State Security Service, the General Intelligence and Security Service of the Armed Forces and OCAM-OCAD to obtain a copy of the suspicious transaction reports, even when CTIF-CFI provides them with information.

In practice, when CTIF-CFI receives information, it cross-references it with information transmitted or requested from the authorities, institutions and obliged entities that the law allows it to question. Consequently, if the file is transmitted to the Public Prosecutor’s Office or to the authorities mentioned above, it is based on multiple sources of information without the original reporting itself being included. When the members of CTIF-CFI or members of its staff, members of the police services and other officials seconded to CTIF-CFI, or external experts it calls upon, are summoned to testify in court, they are also not authorised to disclose the identity of the authors of the suspicious transaction reports.

In addition, the anonymity of AMLCOs who report suspicious transactions and of the financial institutions that employ them is further strengthened by Article 59 of the Law. This provides that the supervisory authorities competent for investigations and prosecutions, such as CTIF-CFI or the Public Prosecutor’s Offices, shall take specific measures to ensure that the AMLCOs are not exposed to possible threats or hostile actions. Please refer to the Explanatory Memorandum of the Anti-Money Laundering Law for more information on this subject.

The Belgian Law of September 15, 2013, protects the reporting person from any changes in the employment relationship.

e) Does the Local Law provide for any remedial measures, including interim relief measures?

The Belgian Law of July 31, 2017, only mentions the specific measure to request an employer to reinstate the previous employment relationship. The employer who reinstates the relationship must pay the loss of earnings due to dismissal or change of the employment conditions as well as the employer’s and employee’s contributions on. If, in respect of an employee who reports an infringement, there is a measure or treatment that can be considered as a form of retaliation, that employee is entitled to compensation.

This is not specified in the Belgian Law of September 18, 2017.

f) Does the Local Law provide for exemptions from liability for whistleblowers?

The Belgian Law of July 31, 2017, states that no civil, criminal or disciplinary action can be brought against a person who makes a report in good faith, nor can professional sanctions be imposed on account of this report. This person is not deemed to be in breach of any restriction of the disclosure or communication of information imposed by contract or by law, regulation or administrative provision, and cannot be held liable in any way for reporting this information.

Article 57 of the Belgian Law of September 18, 2017, provides on the one hand that the disclosure of information in good faith to CTIF-CFI shall not constitute a breach of any restriction on disclosure of information imposed by contract and shall not lead to any adverse or discriminatory employment action. On the other hand, immunity remains intact even if the reporting entity was not precisely and clearly aware of the predicate criminal activity, and even if it appears a posteriori that no illegal activity is related to the transaction that was reported to CTIF-CFI.

g) Does the Local Law provide for sanctions against natural and legal persons that violate whistleblowers’ protection or the duty of maintaining the confidentiality of their identity?

The Belgian Law of July 31, 2017, does not specify specific sanctions. However, the general sanction for violation of professional secrecy are applicable (Article 458 of the Belgian Criminal Code).

The Belgian Law of September 18, 2017, does not specify specific sanctions. However, the general sanction for violation of professional secrecy are applicable (Article 458 of the Belgian Criminal Code).

h) Does the Local Law provide for sanctions in case of false reports?

The Belgian Law of July 31, 2017, does not specify sanctions in case of false reports.

The Belgian Law of September 18, 2017, does not specify sanctions in case of false reports.

According to the Belgian Law of September 15, 2013, a staff member can ask to be transferred (temporarily) to another FAO.

9) Other issues

a) Under the Local Law, is adopting a whistleblowing system relevant to assess the adequacy of a compliance program? Does this have any value to mitigate or eliminate criminal liability for legal entities?

Yes, it has a serious value when it comes to eliminating criminal liability for legal entities.

b) Does the Local Law or another law in your country provide for whistleblower reward programs?

No, none of the described laws provide for any rewards to whistleblowers.

c) Can companies benefit from any incentives in the case of voluntary self-disclosure of violations they became aware of following an internal report?

No.

d) Will implementing the EU Directive create any issues with obligations provided for under other laws / regulations?

No, it will not necessarily create any issues as there is no comprehensive legal framework at the moment.