Whistleblowing

Belgium has copied the list of the EU directive, but has expanded this with some very important domains. The breaches in the following fields of law (domains) fall under the material scope of the Whistleblower Act:

• public procurement;
• financial services, products and markets and the prevention of money laundering and terrorist financing;
• product safety and compliance;
• transport safety;
• environmental protection;
• radiation and nuclear safety;
• food and feed safety, animal health and welfare;
• public health ;
• consumer protection;
• protection of privacy and personal data and security of networks and information systems;
• combating tax fraud; and
• combating social fraud.

Compared to the EU Directive, the two last fields were added. For employers, the social fraud domain is especially interesting as this includes (non-exhaustively) all breaches of the Social Penal Code and all breaches of the statute of independent workers. The Social Penal Code provides for sanctions for breaches of almost all provisions of social law (employment law and social security law); moreover, article 1 of the Social Penal Code defines social fraud as any breach of social legislation that falls under the competence of the federal government. This means that almost all breaches of social laws will fall under the scope of the whistleblowing procedure.

The Whistleblower Protection Act´s  material scope of application goes beyond European legal requirements. It extends the material scope of application to all violations that are subject to punishment (section 2 (1) No. 1 HinSchG). Additionally, violations subject to fines are included insofar as the violated regulation serves to protect life, body, health or the rights of employees or their representative bodies (section 2 (1) No. 2 HinSchG). The last alternative covers not only regulations that directly serve occupational health and safety or health protection, but also related notification and documentation requirements, for example under the Minimum Wage Act. Thus, as a result, section 2 (2) No. 2 HinSchG covers the majority of administrative offences in the context of employment.

Finally, the Whistleblower Protection Act also provides for a list of infringements that predominantly correspond to the relevant areas of law according to the recitals of the EU Whistleblower Directive.