Fonds de compensation Whistleblowing

PROTECTION OF PERSONS WHO REPORT BREACHES
 

1.    Applicable legislative framework

The aim of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (hereinafter "the Directive") is to create a harmonised legislative framework to guarantee effective and balanced protection for whistleblowers against all forms of retaliation that may dissuade or intimidate them from reporting breaches of certain acts and fields of action of the European Union.

This directive was transposed into national law by the law of 16 May 2023 (hereinafter referred to as "the law") and entered into force on 21 May 2023.
 

2.    Material scope

The law extends the material scope of the directive to all national law.

However, this protection does not apply to:

• reporting of breaches relating to national security; and
• whistleblowers whose relations are covered by:
  • medical secrecy;
  • the confidentiality of lawyer-client relations;
  • the professional confidentiality binding notaries and court bailiffs;
  • the secrecy of judicial deliberations;
  • the rules on criminal procedure.
     

3.    Personal scope of application

The law protects any person in Luxembourg, who, in a professional context (current, past or future employment relationship), reports acts or omissions that are unlawful or that contravene provisions of national or European law, including:

• workers (including civil servants and State employees);
• job candidates;
• persons whose work relationship has been terminated;
• self-employed individuals;
• shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members;
• volunteers and paid or unpaid trainees;
• any person working under the supervision and direction of contractors, subcontractors and suppliers;
• the organisation's external co-workers, clients and suppliers, where these are natural persons who have a direct contractual link with the organisation (consultants, agents, advisers, sub-contractors, natural persons with self-employed status, etc.).

This protection also extends to:

• facilitators (natural persons who assist the whistleblower on a confidential basis during the whistleblowing process in a professional context);
• third parties who are in contact with the whistleblower and who are at risk of retaliation in a professional context, such as colleagues or relatives of the whistleblower;
• legal entities that the whistleblower owns, works for or is otherwise connected with in a work-related context.

Whistleblowers may not disclose information that they have obtained by committing a criminal offence!

Whistleblowers wishing to make a report must first check that they have reasonable grounds for believing that the information reported on the violations is true at the time of the reporting and that this information falls within the scope of the law. Documents corroborating the disclosures may also be transmitted.
 

4.    Protection of whistleblowers

Whistleblowers benefit from the protection provided by the law under the following conditions when:

• they have reasonable grounds for believing that the information on breaches was true at the time of reporting and that this information falls within the scope of application of this law, and
• they have made either an internal, an external (through the reporting channels provided for this purpose), or a public report in accordance with the applicable provisions.

In the event of a public disclosure, the whistleblower is entitled to protection if:

• an internal and/or external report has been made but no appropriate action was taken in response to the report within 3 months;
• there are reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public interest or, in the case of an external reporting, there is a risk of retaliation or there is low prospect of the breach being effectively addressed.
   

5.    Reporting channels

Whistleblowers are encouraged to use internal reporting channels before reporting through external reporting channels, when it is possible to remedy the breach internally and when they believe that there is no risk of retaliation. A contact form for internal reporting is available within below section 10.

In the event of reporting through external reporting channels, whistleblowers may contact the competent authorities listed in Article 18 of the law, within the limits of their respective duties and powers.
 

6.    Monitoring procedure

Any report will be acknowledged to the author.

The FDC/the SICAV will determine the action to be taken following the report and may request further information if necessary. In all cases, the FDC/the SICAV will provide feedback to the author within a reasonable period of time.
 

7.    The whistleblowing office

A whistleblowing office has been set up by authority of the Minister of Justice. It is responsible, among other things, for providing potential whistleblowers with information and guidance.

    Whistleblowing office

    13, rue Erasme

    L-1468 Luxembourg

    Tel: (+352) 247-88564

    Email: francis.maquil@mj.etat.lu | ods.info@mj.etat.lu
 

8.    Confidentiality and protection of personal data

The FDC/the SICAV is committed to protecting the identity of the whistleblower in accordance with article 22 of the law. Without the explicit consent of the whistleblower, his or her identity will not be disclosed, except where this is a necessary and proportionate obligation as imposed by the amended law of 8 June 2004 on the freedom of expression in the media, or as imposed by European Union law in the context of investigations carried out by national authorities or in the context of legal proceedings, in particular with a view to safeguarding the rights of defence of the person concerned.

Any processing of personal data, including the exchange or transmission of personal data by the competent authorities, shall be carried out in accordance with Regulation (EU) 2016/679 and the law of 1 August 2018 on the protection of individuals with regard to the processing of personal data in criminal matters as well as in matters of national security.
 

9.    Penalties

Any person who knowingly reports or publicly discloses false information may be subject to a prison sentence of between 8 days and 3 months and a fine of between €1,500 and €50,000.

Any person making false reports may be held civilly liable. The entity suffering the damage may claim compensation before the competent court for the loss suffered.

For more information, please visit the Ministry of Justice website.
 

10.    Contact form for internal reporting