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Loi du 16 mai 2023 portant transposition de la Directive (UE) 2019/1937 du Parlement européen et du Conseil du 23 octobre 2019 sur la protection des personnes qui signalent des violations du droit de l’Union (art. 20)

 

 

WHISTLEBLOWER PROTECTION

Ombudsman fir Kanner a Jugendlecher Mënscherechtshaus – House of Human Rights 65, route d’Arlon L-1140 Luxembourg Phone: (+352) 283 73645 Email: whistleblowing@okaju.lu

In Luxembourg, the protection of whistleblowers is governed by the Law of 16 May 2023 transposing Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (the “Law”).

As a competent authority, the Ombudsman fir Kanner a Jugendlecher (OKAJU) is authorised to receive alerts concerning violations of the International Convention on the Rights of the Child (CRC), adopted in 1989 by the United Nations General Assembly and ratified by Luxembourg in 1993.

Anyone can contact the Office des signalements for general information on the competent authority for the type of alert in question.

1. Who can be protected by the Law?
2. What can be reported to the OKAJU under the Law?
3. What are the conditions for protection under the Law?
4. Internal reporting channels
5. How do I report a violation to the OKAJU?
6. What is protection against reprisals?
7. Confidentiality
8. Processing of personal data
9. Contact details of the Office des signalements

 

 

 

 

1. Who can be protected by the Law?

The Law protects whistleblowers working in the private or public sector who have obtained information about violations in a professional context (current, past or future employment relationship), including :

• Employees (including public servants and government employees),
• Self-employed persons,
• Shareholders and members of the administrative, management or supervisory body of a company, including non-executive members as well as volunteers and paid or unpaid trainees,
• Any person working under the supervision and direction of contractors, subcontractors and suppliers.

It also protects :

• Facilitators (an individual who assists a whistleblower on a confidential basis),
• Colleagues or relatives of the whistleblower who are at risk of reprisals,
• Legal entities belonging to the whistleblower for whom he or she works, or with whom he or she has professional ties,
• Persons who have reported or disclosed information on violations anonymously, but who are subsequently identified and are subject to reprisals, persons who report violations to the competent institutions, bodies, offices or agencies of the European Union.

2. What can be reported to the OKAJU under the Law?

As a whistleblower, you can report any breach of the CRC, i.e. acts or omissions which are unlawful, or which run counter to the object or purpose of the CRC.

You may report any information, including reasonable suspicions, concerning:

• Violations that have occurred or are very likely to occur,
• Attempts to conceal these violations.

These violations must have occurred or be likely to occur in the organisation in which you work or have worked, or in another organisation with which you are or have been in contact in the course of your work.

3. What are the conditions for protection under the Law?

To be protected from all forms of reprisal, you must:

(1) Have had reasonable grounds to believe that the information reported was true at the time of reporting and falls within the scope of the Law; and

(2) Have made an alert either internally (via the internal alert channels of your company or administration), externally (via the alert channels of a competent authority), or publicly (following an external alert without result).

You also benefit from the protection provided by the Law when:

• You have reported or disclosed information anonymously, but are subsequently identified and suffer reprisals
• You report violations to the competent institutions, bodies, offices, or agencies of the European Union

4. Internal alert channels

Each entity in the private sector (50 employees or more) and the public sector (except municipalities with fewer than 10,000 inhabitants and entities with fewer than 50 employees) must propose internal alert channels and procedures and ensure that they are followed up.

You are encouraged to give priority to internal alerts if they can put an end to the practice complained of.

However, you cannot be penalised if you feel that internal alerting could be prejudicial to you (e.g. employer retaliation) and you prefer to report the violation directly to us rather than to your employer.

 

5. How do I report a violation to the OKAJU?

Reception of alerts

If you wish to report violations that fall within the OKAJU’s remit, you can submit an external alert to the OKAJU either directly or after submitting an internal alert.

You can contact the OKAJU in French, Luxembourgish, German or English, using the contact details at the top of the page or by coming in person.

When the OKAJU receives an alert for which it is not competent, it will forward it within a reasonable time and in a confidential and secure manner to the competent national authority, which will inform you of it.

Only authorised OKAJU staff members have access to information relating to alerts. They are required to respect professional secrecy in accordance with the oath they took on taking up their duties.

In the event of an alert via other channels or via other OKAJU staff members, the latter are also obliged to respect confidentiality regarding your identity or that of the person concerned and will forward the alert as quickly as possible to the staff members in charge of processing.

Telephone alerts are not recorded, but the OKAJU can draw up an accurate record of the main points of the conversation, which you can then check, correct, and sign for approval.

When your alert is made in person, the OKAJU will, with your consent, keep full and accurate records of the conversations in the form of a recording or minutes.

Follow-up on alerts

The OKAJU receives and follows up alerts falling within its remit. It may ask you in writing to clarify information about the violation reported.

It may also request in writing that the entity to which the alert relates provide any information it deems necessary, while strictly respecting the confidentiality of your identity.

In particular, the OKAJU ensures that:

 Acknowledge receipt of your alert within 7 days of its receipt, unless:

• You expressly request otherwise, or
• If the OKAJU has reasonable grounds to believe that acknowledging receipt of the alert would compromise the protection of your identity

 Diligently following up your alert

 Provide you with feedback within 3 months, or 6 months in duly justified cases

 Informing you of the final outcome of the steps taken in response to your alert, with the exception of information falling within the scope of a legal obligation of secrecy sanctioned by criminal law

OKAJU’s decision and means of action

After examining your alert, the OKAJU may:

 Decide to close the procedure

• In the event of a manifestly minor violation (without prejudice to other obligations or other applicable procedures aimed at remedying the violation reported)
• In the case of repeated alerts which contain no significant new information in relation to a previous alert for which the procedure has been closed

The OKAJU will then notify you of its decision and the grounds on which it is based.

 Send your alert to the Office des signalements

The Office des signalements can impose administrative fines on natural and legal persons who fail to comply with the Law:

• From €1,250 to €25,000 if they retaliate or bring abusive proceedings against whistleblowers,
• From €1,500 to €250,000, in particular if they obstruct a whistleblower, refuse to remedy a violation or fail to set up the required internal reporting channels (the fine may be doubled in the event of a repeat offence).

 

6. What is protection against reprisals?

When you report a violation to us and fall within the scope of the Law, you are protected against any form of reprisal because of your reporting.

No liability for whistleblowers

When you meet the conditions of protection laid down in the Law, you are not breaking the law regarding the disclosure of information, and you incur no liability regarding:

• Whistleblowing (internal and/or external) or public disclosure provided that you had reason to believe that the whistleblowing or public disclosure was necessary to reveal a breach of the law
• Regarding obtaining or accessing information that is reported or publicly disclosed (unless such obtaining or access constitutes an autonomous criminal offence)
• As a result of alerts or public disclosures made, including in legal proceedings for defamation, breach of copyright, breach of secrecy, breach of data protection rules or disclosure of business secrets, or for compensation claims based on private law, public law or collective labour law

You can then invoke this alert to request that the procedure be dropped.

Prohibition of reprisals

All forms of reprisals, including threats and attempted reprisals, are prohibited against whistleblowers because they have made an alert.

In particular, the following are prohibited and automatically null and void:

• Suspension of an employment contract, lay-off, dismissal, non-renewal or early termination of a fixed-term employment contract or equivalent measures
• Demotion or refusal of promotion
• Transfer of duties, change of place of work, reduction in salary, change in working hours
• Suspension of training
• Disciplinary measures imposed or administered, reprimand or other sanction, including a financial penalty
• Non-conversion of a temporary employment contract into a permanent contract, where the employee could legitimately expect to be offered a permanent job
• Negative performance appraisal or work certificate
• Early termination or cancellation of a contract for goods or services
• Cancellation of a licence or permit.

The following are also prohibited:

• Coercion, intimidation, harassment or ostracism
• Discrimination, disadvantageous or unfair treatment
• Damage, including damage to a person’s reputation, particularly on social networks, or financial loss, including loss of business and loss of income
• Blacklisting on the basis of a formal or informal agreement at sector or industry level, which may mean that the person will not be able to find employment in the future in the sector or industry
• Referral for psychiatric or medical treatment

Action against reprisals

If you suffer reprisals as a result of reporting a violation, you may, within 15 days of being notified of the measure, ask the competent court to declare the measure null and void and to order its cessation.

If you have not claimed that the reprisal measures are null and void, or if you have already obtained a declaration that they are null and void, you may still bring an action for damages.

Anyone who takes reprisals or brings abusive proceedings against you is liable to a fine of between €1,250 and €25,000.

Reversal of burden of proof

If you are subjected to a prejudicial measure in connection with the alert made, you automatically benefit from the presumption that this measure has been taken against you in reprisal for the alert. It is therefore up to the person who took the measure to establish the reasons for it.

7. Confidentiality

The OKAJU undertakes to protect your identity within the limits of applicable legislation. In other words, neither your identity, nor that of any third parties that may be involved, will be communicated to the entity that is the subject of the alert.

Your identity and that of third parties will only be disclosed in circumstances where this becomes unavoidable by law (for example because of OKAJU’s obligation to inform the State Prosecutor if the facts are likely to constitute a crime or an offence, or in the context of criminal proceedings against the entity where the reporting party may, where appropriate, be called as a witness).

8. Processing of personal data

As a competent authority, the OKAJU is responsible for the processing of your personal data and ensures that any data processing carried out under the Law, including the exchange or transmission of personal data by competent authorities, is carried out in accordance with Regulation (EU) 2016/679 (hereinafter, the “General Data Protection Regulation” or “GDPR”).

For further information, please consult the Information notice relating to the processing of external alerts.

If you have any questions about the processing of personal data by the OKAJU, you can contact the Data Protection Officer (DPO) by post to the attention of the DPO or by e-mail to dpo@okaju.lu.

9. Contact details for the Office des signalements

If you are thinking of issuing an alert or would like general information on the competent authority for the type of alert in question, you can contact the Office des signalements.

Office des signalements
13, rue Erasme, Centre administratif Werner
L-1468 Luxembourg
Phone: (+352) 247-88564
Email : ods.info@mj.etat.lu

 

 

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