24-11-2023

As of 17 December 2023, this legislation applies to Small and Medium-sized Enterprises (50 to 249 employees). It was already in effect on 15 February 2023 for large companies (more than 249 employees).

What is new for SMEs?

1. A company (=legal entity) is must provide an internal reporting channel for employees, self-employed service providers, shareholders, board members, etc., who wish to report violations in a work-related context. This involves various EU policy areas, including market competition, but also social and tax fraud.

2. "Whistleblowers" are protected from retaliation or unfavourable treatment when (i) they had reasonable grounds to believe that the information reported about violations (within certain domains) was correct at the time of reporting and (ii) they reported this information through a valid channel.

What are the risks if you fail to comply with this legislation?

Should the company fail to comply with the Whistleblowers Act, this may be punishable by severe sanctions:

- Failing to establish an internal reporting channel and a reporting register: prison sentence of 6 months to 3 years and/or criminal fine of 4.800 EUR to 48.000 EUR; or administrative fine of 2.400 EUR to 24.000 EUR;

- In the event of retaliation or unfavourable treatment by the company towards the whistleblower and no evidence is provided to the contrary by the employer (reversal of the burden of proof):

o protected employee: compensation of 18 to 26 weeks salary;

o others: the damage actually suffered (if proven);

- If the employer (or any person) obstructs or attempts to obstruct reporting, retaliates, initiates unnecessary or inconvenient proceedings, does not ensure the confidentiality of the identity of the whistleblower: a prison sentence of six months to three years and/or a criminal fine of 4.800 EUR to 48.000 EUR

What is Astrea's added value when it comes to implementing this legislation?

Astrea offers a twofold one stop shop service:

- Legal advice and assistance with the implementation of a reporting platform (anonymous or not):

We have in-house legal knowledge to advise on this legislation as well as assist your company with its legal implementation (including drafting the necessary legal documents).

- Offering an anonymous reporting platform in cooperation with Trustan BV:

Astrea has entered into a cooperation with Trustan BV which provides an effective reporting platform where employees can report anonymously, thus meeting the obligation to provide an "internal reporting channel," albeit anonymously.

Interested? Contact our employment law team.