Office Of Administrative Ethics and Deontology Federal Public Service

Budget and Management Control

WHISTLEBLOWING IN BELGIUM

DENUNCIATION OF A SUSPECTED INTEGRITY BREACH

IN A FEDERAL ADMINISTRATIVE AUTHORITY BY A MEMBER OF ITS STAFF

LAW OF SEPTEMBER 15TH, 2013

The path towards the law and its key aspects (protection of whistleblowers)

Amine Souici Paris, OECD, June 17th 2014

BELGIUM & « WHISTLEBLOWING » LAWS

BELGIUM THE FEDERAL STATE THE COMMUNITIES

the Flemish Community the French Community the German-speaking Community

THE REGIONS the Flemish Region the Brussels Capital Region the Walloon Region

THE PATH TO THE FEDERAL WHISTLEBLOWING LAW

2000 Federal security plan (parliamentary document) whistleblowing is

evoked for the first time (federal state - anti-corruption policy).

2000 / 2010 Several parliamentary proposals : none of them were adopted.

2006 Formal request of the federal government to the Office of Administrative Ethics: drafting of a proposal.

2006 / 2013 The draft proposal was accepted, amended and modified (parliamentary process).

September 2013 Adoption of the parliamentary proposal: the federal whistleblowing law.

A BRAND NEW LAW

Published in the Official Gazette on September 15th, 2013

Entered into force on April 5th, 2014 ….

…. no practical experience yet.

WHISTLEBLOWER PROTECTION WITNESS PROTECTION

Whistleblower protection Witness protection

Law of September 15th, 2013 Law of July 07th, 2002

Protection of staff members of the federal administrations who acted according to the Whistleblowing law

Protection of witnesses in criminal cases (organised crime, gross violations of international humanitarian laws, …)

Protection against professional reprisals Physical protection (police protection, fake identity, relocation, …)

Granted by the federal Ombudsman. Granted by the Witnesses Protection Commission.

THE DENUNCIATION OF A SUSPECTED INTEGRITY BREACH. WHAT IS IT?

It is the suspicion of execution or omission of an act, by a staff member:

a) Which constitutes an offence against the laws, decrees, internal rules and procedures;

b) Which implies an unacceptable risk to life, health or safety of the people or the environment;

c) Which is a serious professional misconduct or a serious breach to the good management of an administrative authority;

d) Or if a staff member has knowingly ordered or advised another staff member to commit an integrity breach as defined by a), b) and c).

PROCEDURE TO BLOW THE WHISTLE

Prior opinion of the Integrity Counselor (IC) or of the Federal Ombudsman.

Public or confidential denunciation to the functional or hierarchical chief, or to the IC, or to the Federal Ombudsman.

Inquiry on the denunciation by the Federal Ombudsman.

Conclusions of the inquiry communicated to the whistleblower, to the chairperson of the federal administration and to the Prosecutor (if an offence or a crime has been detected).

PROTECTION OF THE WHISTLEBLOWER

Granted by the Federal Ombudsman to the whistleblower who acted in accordance with the procedure.

For a period beginning at the reception of the request of a prior opinion and ending two years after the conclusion of the inquiry.

Also granted to the staff member « associated » in the inquiry and to the staff member« adviser » of either the whistleblower or the associated staff member.

A PROTECTION AGAINST PROFESSIONAL REPRISALS

Dismissal of a staff member.

Terminate prematurely or not extend a temporary appointment.

Not convert a temporary appointment for a trial period in to a permanent appointment when this opportunity exists.

Move or transfer a staff member or refuse a request to that effect.

Take a measure of order and/or disciplinary actions.

A PROTECTION AGAINST PROFESSIONAL REPRISALS

Deprive a staff member of a wage increase and/or promotion opportunities.

Deprive a staff member of facilities enjoyed by other employees.

Refuse a leave.

Assign a negative assessment.

…

LIFTING OF THE PROTECTION

If the whistleblower acted knowing that the information was not true or sincere: disciplinary action is taken against the fake whistleblower.

If the whistleblower himself is involved in the integrity breach: disciplinary action and/or legal action can be taken.

REPRISALS OR THREAT OF REPRISALS AGAINST WHISTLEBLOWERS

If a whistleblower is subject to (threat of) reprisals :

a) The whistleblower files a complaint to the Federal Ombudsman, who will contact the

chairperson of the administration for explanations ;

b) The burden of proof, that the incriminated measure is justified and is not linked to the whistleblowing, rests upon the administration

REPRISALS OR THREAT OF REPRISALS AGAINST WHISTLEBLOWERS

If the complaint is justified : disciplinary action is taken against the staff member who commited the reprisals or threatened to do so.

If the complaint is deliberately false : disciplinary action is taken against the whistleblower who overused his/her protection.