Everything you need to know about the future whistleblowing law
With the exception of certain items, which are currently being discussed by the various chambers partaking in the law-making process, the bill transposes the Directive in its entirety.
Scope of application of the future law
According to the bill, the law will protect persons who report “breaches” (“violations”), i.e. acts or omissions that are unlawful or go against directly applicable provisions of national or European law, to the extent that they result in a disturbance of public interests. Lawmakers propose extending this material scope to Luxembourg national laws as well.
Classified information or information relating to national security would be excluded from the scope of application of the law (i.e. no protection granted in case of reporting). All information covered by secrecy (medical information, privileged information in relation with a client-lawyer relationship, etc.), would also be excluded from this scope, with some exceptions applicable.
The law will in principle be applicable to all persons reporting breaches, working either in the public or private sector and who obtained information about a breach in a professional context, including employees, public servants, independent workers, shareholders and persons to the administrative, management or supervisory body of an undertaking, volunteers and paid or unpaid trainees, etc.
Lawmakers also wish to extend protection to facilitators (i.e. individuals assisting a reporting person in the whistleblowing process), to third persons who are connected with the reporting person and who could suffer retaliation (colleagues, relatives), or to legal entities that the reporting person owns, works for or is otherwise connected with.
In order to benefit from the protection granted by the law, the relevant persons must:
- have reasonable grounds to believe that the information about a violation they reported was true at the time of their reporting, and that such information fell within the scope of the law, and
- report this information internally, externally or via public disclosure, which are the three reporting channels deriving from the bill.
Internal reporting channels
The bill imposes that all legal entities hiring more than fifty employees or agents (either in the private and public sector) will establish internal reporting channels compliant with the following obligations:
Non-compliance with the above provisions will be punishable by a criminal fine.
External reporting channels
Authorities listed in the bill will have to establish autonomous and independent external channels of reporting, which will qualify as such if they comply with various conditions, notably the following:
Reporting persons may resort to external reporting after having used internal reporting, or immediately.
The lawmakers list relevant authorities, and include twenty-two various bodies such as the CSSF, the CNPD, the CAA, Customs, the Bar Association, the ITM, etc.
The bill states that an individual who makes a public disclosure will qualify for protection if he or she reported internally or externally, but no appropriate action was taken, or where he or she had reasonable grounds to believe that there was an imminent or manifest danger to public interests, or that there was a low prospect of the breach being effectively addressed due to the particular circumstances of the case.
An extended protection, although not unlimited
Whistleblowers having duly reported an information about a violation will be protected against retaliation (e.g. suspension, lay-off, dismissal, reduction in wages, demotion, harassment, etc.). Any such measure will be considered as being invalid and the reporting person may claim for its annulment within fifteen days following the notification thereof (or ask for damages). This person will also be protected (under conditions) against civil or criminal liability.
Reporting persons may however not abuse their rights; knowingly reporting or disclosing false information may incur a custodial sentence and a criminal fine.
The bill has yet to be adopted and is currently being discussed largely by the lawmakers. For instance, several bodies have identified that the list of authorities acting as external reporting channels is too wide, albeit incomplete, and that it would be preferable to implement a “one-stop shop” body able to receive and treat external reports in an harmonised way. Perhaps this could be the future purpose of the “Reporting Office”, of which the bill suggests the creation, but which duties are however limited for now to informing reporting persons about their rights and raising public awareness through recommendations.
In spite of these discussions, the law is expected to be adopted in the following months.
If you have any questions about this topic, please reach out to NautaDutilh's employment expert Alexis Glavasevic.