On January 12, 2022, Luxembourg’s Minister of Justice submitted to the country’s legislature Bill 7945, which transposes Directive (EU) 2019/1937, otherwise known as the Whistleblower Protection Directive (“Directive”). The official deadline for EU member states to transpose the Directive into national law was December 17, 2021, however, nearly every state, including Luxembourg, failed to meet this deadline. Now that Bill 7945 has been presented to the legislature, experts will review it and compare the legislation against the requirements of the Directive. Given the expiration of the deadline for transposition in December, the legislature is expected to act quickly in passing Bill 7945 into law, so as to avoid the European Commission taking legal action for non-implementation.
Bill 7945 provides a framework to protect individuals who have obtained information in the work context about acts or omissions that violate national law or are against the public interest, and report protected information in any of the manners proscribed by the draft law. Specifically, Bill 7945 protects reports made by current and former employees, prospective employees, volunteers, trainees, self-employed individuals, shareholders, contractors, subcontractors, and suppliers. To be protected under the draft law, individuals must have reasonable grounds to believe the information they report is true and that it falls within the scope of the measure. The measure prohibits retaliation against individuals based on them reporting protected information in accordance with the draft law’s provisions.
Bill 7945 provides three methods by which individuals may report “protected information.” Specifically, they may:
- Report information to employers internally. The measure requires that private sector employers with 50 or more employees implement procedures for individuals to make such reports. Note that the Directive provides a two-year grace period for employees with between 50 and 249 employees to implement required internal reporting channels.
- Report information to an external “competent authority,” defined as one of 22 entities named in the draft law, including Luxembourg’s Financial Sector Supervisory Commission , Supervisory Authority for the Insurance Sector, National Commission for Data Protection, and Inspectorate of Labour and Mines.
- Disclose information publicly. Public disclosure is only protected if the whistleblower first reports information internally and/or externally and appropriate action is not taken, if there is an immanent risk to the public, or if the whistleblower fears retaliation.
Bill 7945 also sets forth follow-up procedures that competent authorities will take regarding reports and provides for the creation of a “reporting office” to inform and guide potential whistleblowers.
Bill 7945 provides that financial penalties of up to EUR 250,000 may be imposed against individuals and entities for obstructing or attempting to obstruct reporting, refusing to provide information requested by competent authorities or providing false information, failing to maintain the confidentiality of whistleblowers’ identities where required, or refusing to remedy violations. The law contemplates financial penalties of up to EUR 50,000 and up to three months’ imprisonment for individuals who intentionally make false reports. We will continue to monitor these developments and keep you apprised.
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