New law in force to protect whistleblowers

The Act of 16 May 2023 on the protection of persons who report breaches of EU law came into force on 21 May 2023.

Its purpose is to protect whistleblowers against reprisals by an employer or other natural or legal person exercising a certain power of constraint in relation to the activity of the “whistleblower”.

Who is concerned?

It applies to

• people working in the private and public sectors,

• self-employed service providers and employees,

• contractors and sub-contractors,

• shareholders and members of a company's administrative, management or supervisory body (including non-executive members),

• volunteers, paid or unpaid trainees, etc.

  Whistleblowers are also protected in cases where their employment relationship has ended or where the employment relationship has not yet begun, for example where information about violations was obtained during the recruitment process or during pre-contractual negotiations.

How to report?

Internal reporting...

Whistleblowers are encouraged to give preference to reporting through internal reporting channels over reporting through external reporting channels when it is possible to remedy the breach effectively internally and they believe there is no risk of risk of retaliation.

...with the reporting channel

The reporting channel may be managed internally by a person or department designated for this purpose or provided externally by a third party. The legal entities concerned must make available appropriate information concerning the use of internal reporting channels, as well as clear and easily accessible information concerning external reporting procedures. Whistleblowing channels must allow for written or oral whistleblowing or both in one of the three administrative languages of Luxembourg.

The securely managed reporting channel must guarantee the confidentiality of the identity of the author of the alert and any third party mentioned in the alert.

External reporting...

When a whistleblower wishes to report violations using the external reporting channel, it is suggested that the authorities in place in a large number of areas be used, such as the Inspection du Travail et des Mines (ITM) when reporting violations relating to labour legislation.

Public disclosure

The whistleblower may make a public disclosure with the protection provided by law, if he or she has first made an internal and external report or directly made an external report, for which no appropriate action has been taken, and where he or she has reasonable grounds to believe:

• there is an imminent or obvious danger to the public interest; or
• there is a risk of retaliation with little chance of remedying the breach following an external report

Protection measures

The law provides for a non-exhaustive list of prohibited reprisals against a whistleblower. Thus, not only measures taken unilaterally, but also contractual stipulations sanctioning retaliation under the cover of an agreement or tending to preventively limit the protection of the law are sanctioned by the law as null and void.

Penalties

An administrative fine may be imposed by the competent authorities or the Reporting Office on natural and legal persons who:

• obstruct or attempt to obstruct an alert ;
• refuse to provide information deemed necessary by the competent authorities, or provide incomplete or false information; or
• infringe the confidentiality enjoyed by the authors of alerts;
• refuse to remedy the violation observed;
• fail to establish channels and procedures for internal reporting and follow-up.

The fine may range from €1,500 to €250,000. In addition, those who retaliate or bring abusive proceedings against whistleblowers may be fined between €1,250 and €25,000.

The perpetrator of an alert who knowingly reports or publicly discloses false information may be subject to a prison sentence of between eight days and three months and a fine of between €1,500 and €50,000.