- Simont Braun - https://simontbraun.eu -

The EU reinforces the protection of whistleblowers

Directive 2019/1937 on the protection of persons who report breaches of EU law (or “whistleblowers”) was published on 26 November 2019.

This Directive requires, among others, that all companies with more than 50 employees and public sector entities establish internal procedures to facilitate and ensure rapid follow-up on reported breaches. To ensure the effectiveness of the system, the Directive also provides for serious protection against retaliation to whistleblowers.

The Member States must transpose it by 17 December 2021 at the latest.

Material scope of application

The Directive aims to protect persons reporting:

1. breaches or abuses of EU law in the following areas:

2. given their negative impact on the proper functioning of the internal market, breaches relating to EU competition rules and corporate tax rules.

3. The Directive provides that Member States may extend the scope of protection to other areas.

Personal scope

The Directive applies to reporting people in the private or public sector who acquired information on breaches in a work-related context including, at least, the following:

The measures of protection foreseen by the Directive shall also apply to:

Conditions for protection

According to Article 6 of the Directive, whistleblowers benefit from the protection offered by the Directive provided that:

Internal and external reporting channels

In order to efficiently protect whistleblowers, Members States must ensure that:

Whistleblowers are generally encouraged to use internal channels first, but they can choose whether to report directly externally to the competent authorities.

The Directive furthermore specifies that the recipient of reporting must diligently follow up on the reports and provide feedback to the reporting person within a reasonable timeframe not exceeding three months or, for the external reporting, six months in duly justified cases.

Public disclosure

According to Article 15, whistleblowers can make public disclosure and report to the media only if:


Protection measures

The Directive provides for a prohibition of retaliation in all its various forms, e.g. dismissal, negative performance assessment, intimidation, harassment, discrimination or unfair treatment; damage, including to the person’s reputation, or financial loss, blacklisting.

Moreover, adequate remedies shall be taken in case of retaliation, including reversal of the burden of proof in proceedings and interim relief pending the resolution of legal proceedings.

Whistleblowers should also not incur liability for breach of NDAs provided that they had reasonable grounds to believe that the reporting or public disclosure of such information was necessary for revealing a breach, and provided that no criminal offence was committed.

Members Sates also keep the possibility to introduce or maintain more favourable provisions in their national regime.


Member States shall provide for effective, proportionate and dissuasive penalties applicable to natural or legal persons that:

Safeguards for concerned persons and the credibility of the system

The Directive also implements measures of protection for the “concerned person(s)”:

Entry into force and implementation in Belgium

This Directive shall enter into force on 16 December 2019, and Member States shall transpose the Directive by 17 December 2021, with a possible extension until 17 December 2023.

Given that Belgium, unlike France, Sweden or Italy, does not already have a comparable general system, the way in which transposition will be handled by our future government should be closely observed. We will keep you informed…