Whistleblowing Directive to be transposed by the end of this week. Should you take action even if Belgium misses the deadline?
New rules on the protection of whistleblowers should enter into force by 17 December 2021. On 23 October 2019 the European Council approved the directive on the protection of persons who report breaches of Union law. This piece of legislation is also known as the ‘Whistleblowing Directive’.
According to research 60% of organizations in the private sector have fallen victim of violations of an economical nature, yet only 27% of the cases are reported. In most cases violations are not reported for fear of legal and financial consequences, or because the victim or witness does not know how to report it. The Whistleblowing Directive aims to give a minimum level of protection to whistleblowers as they play a key role in exposing and preventing violations of Union law.
The Whistleblowing Directive should be transposed into national legislation by all Member States by 17 December 2021. Will Belgium hit the mark? Only a handful of Member States have progressed quite far in their transposition efforts. Although Belgium has made some efforts, it will likely miss the deadline. The EU has not extended its deadline, so even if not transposed organizations should still act and implement appropriate policies and processes for this. For many organizations this probably feels like a déjà-vu to the ‘last’ piece of European legislation with which many are still struggling to comply with (namely the GDPR).
While the Covid-19 pandemic and bureaucracy are partly to blame for why so many Member States will miss the transposition deadline, the main reason is probably due to ongoing discussions on whether or not to go beyond the minimum level of protection granted by the Whistleblowing Directive. Should the protection to whistleblowers merely be granted to those who report breaches of Union law, or also to those who report breaches of national law? Member States may provide for financial assistance and other support measures for whistleblowers, including psychological support, yet of course this is up to the Member States to decide. Member States must also decide on whether anonymous reporting will be accepted and should be followed up in the same way as non-anonymous reports, even though the Whistleblowing Directive makes it clear that anonymous reports should be afforded the same level of protection.
Would you like to read more? Our next post on this topic will address the question on how to ensure confidentiality of the identity of the whistleblower in the reporting process. In case you would like to receive further information on this topic or need our assistance, please do not hesitate to reach out to us.
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 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.
 Transparency International Belgium, “Recommendations for effective transposition of EU Directive on whistleblowing”