- The law1 provides protection for persons who in good faith report to the FSMA an infringement of the financial legislation with which the FSMA supervises compliance. The reporting person does not lose protection merely because a report made in good faith has been found incorrect or unfounded. This also applies to persons who have made anonymous reports but who are subsequently identified and suffer retaliation. Facilitators (persons who assist reporting persons in the reporting process and whose assistance must be confidential) and third parties who are connected with the reporting persons shall qualify for the same protection if they had reasonable grounds to believe that the reporting person fell within the scope of protection under the law.
- Reporting persons who report such an infringement in good faith may report information to the FSMA that would normally be confidential2, provided that they have reasonable grounds to believe that the reporting of such information is necessary for revealing an infringement of the legislation enforced by the FSMA. Such reporting may not give rise to any civil, criminal or disciplinary proceedings or to professional sanctions. In legal proceedings, the reporting person and other protected persons cannot incur liability of any kind in respect of such reports of infringements. Nor can persons reporting such information incur liability in respect of the acquisition of or access to the information which is reported, provided that such acquisition or access did not constitute a self-standing criminal offence.
- Any form of retaliation against the reporting person and the other protected persons3, including threats of retaliation and attempts of retaliation, is prohibited (such as dismissal, salary cut, change in position or job content, discrimination, harassment, withholding of training, etc.). The reporting person and the other protected persons who believe that they are the victim of retaliation may file a complaint with the federal coordinator (the ‘Federal Ombudsman’4) and may turn to the courts5. The burden of proof rests on the entity that took the detrimental measure. The reporting person can ask the FSMA to confirm that he or she is a whistleblower, as well as the date when the report was made, to any administrative or judicial authority.
- It should be noted that the above-mentioned protection rules are laid down by Belgian law and that this protection therefore applies only in so far as Belgian law applies (to the individual relationship between the reporting person and the person making a claim against him/her, or between the reporting person and his/her employer or another person who employs him/her).
- In addition, reporting persons and the other protected persons also have access to a number of support measures, such as (i) independent advice, free of charge, on the rights of the reporting person and the rights of the person accused of an infringement in the report; (ii) technical advice in respect of any authority involved in the protection of the reporting person; (iii) legal assistance in cross-border proceedings; (iv) technical, psychological, media-related and social support; and (v) financial assistance to reporting persons in the framework of legal proceedings. The support referred to in points (i), (iii), (iv) and (v) is provided by the Federal Institute for the protection and promotion of Human Rights (FIRM/IFDH)6.
- The protection rules are described in more detail in a circular of the FSMA (available in Dutch and French only).
[1] Chapters 6 and 7 of the Law of 28 November 2022 on the protection of whistleblowers reporting infringements of European Union or national law identified within a legal entity in the private sector (the 'Law of 28 November 2022').
[2] The Law of 28 November 2022 is without prejudice to the protection of the confidentiality of communication between lawyers and their clients (‘privileged communication’) or of the communication between a health care provider and a patient (‘medical privacy’) (Article 5, 3° of the aforementioned Law). The Law is also without prejudice to the confidentiality of information that is covered by the confidentiality of judicial deliberations (Article 5, 4° of the aforementioned Law). The Law of 28 November 2022 also does not apply to matters of national security or classified information (Article 5, 1° and 5, 2° respectively of the aforementioned Law).
[3] Namely: (i) facilitators (persons who assist reporting persons in the reporting process and whose assistance must be confidential); (ii) third parties who are connected with the reporting person and who may suffer retaliation in a work-related context, such as co-workers or family members of the whistleblower; and (iii) legal entities that are owned by the whistleblower, for which the whistleblower works or with which the whistleblower is otherwise connected in a work-related context.
[4] The role of the federal coordinator is fulfilled by the Federal Ombudsman. For more information and contact details, see: https://www.mediateurfederal.be/en/centre-for-integrity.
[5] The employee can ask to be reinstated by the company under the same conditions (with payment of the lost earnings) or can claim compensation in the amount of a minimum of 6 months’ gross salary. Public sector employees and persons employed by persons other than the employer, such as self-employed staff, enjoy the same protection.
[6] The FIRM/IFDH can be contacted by post (Leuvenseweg 48, 1000 Brussels) or by email (kl-la@firm-ifdh.be).