Whistleblowing is a divisive subject in Luxembourg, with some viewing it as a legitimate means of expressing concerns at corporate conduct, and others believing it tends to be a means to personal ends.
With the advent of new technologies and social networks, but also with the increased digital processing of information, public disclosures are now common and increasingly important.
Whistleblowers, and the practice of whistleblowing, are divisive. While some see it as a genuine means of expressing the general interest in the absence of corporate transparency, whistleblowing can also be a way for a whistleblower to assert their personal interests such as personal recognition.
In Luxembourg, the concept of whistleblowing had a strong impact in 2014 with the ‘LuxLeaks' affair. In this highly publicised case, a former employee of PricewaterhouseCoopers (PwC) had stolen thousands of confidential tax documents from their former employer which they later made public to highlight tax avoidance practices implemented in Luxembourg. This media disclosure had worldwide echoes and brought the figure of the whistleblower to the forefront in Luxembourg. Reactions varied. Perceived as a hero by some, the former employee was however sued by their former employer for domestic theft, violation of professional confidentiality, violation of business confidentiality, money laundering and fraudulent access to an automated data processing system. In a decision dated 11 January 2018, the Luxembourg Court of Cassation acquitted the former employee by recognising them as a whistleblower based on the status elaborated by the European Court of Human Rights, stating that the recognition of whistleblower status must in principle apply to all offences for which a person is prosecuted.
The new EU Whistleblower Direct is designed to address this legislative gap in public disclosure. A bill submitted in January 2022 to the Chamber of Deputies in Luxembourg intends to transpose the Directive in order to introduce a true whistleblower status and guarantee effective protection to whistleblowers. The transposition of the Directive will provide a clear legal definition of whistleblowing in Luxembourg. This bill is intended to be applied in the professional environment and to guarantee a complete and coherent framework for the protection of whistleblowers. To this end, the bill would extend the scope of protection to national law, as violations of national law may indeed seriously harm the public interest. The bill currently under consideration should strike the right balance between the interests of the employer and the necessary and fair protection of whistleblowers.
To date, in Luxembourg legislation, there are only specific legal provisions for specific areas such as finance, insurance, labour law or criminal law :
- The law of 5 April 1993 on the financial sector requires credit institutions and investment firms to set up a system enabling their employees to report internally potential or proven violations of the law of 5 April 1993 or the law of 30 May 2018 on markets in financial instruments. Moreover, the law of 23 December 2016 provides that the Financial Sector Supervisory Commission and supervised entities must establish appropriate internal procedures enabling their employees to report any violation of Regulation (EU) No 596/2014 on market abuse.
- In the area of insurance, any person acting in good faith, and specifically those who work or have worked with entities in the Luxembourg insurance sector, may report to the Office of the Insurance Commissioner, in a confidential and secure manner, any malfunctions or failures committed by persons subject to the supervision of the Office of the Insurance Commissioner.
- The Luxembourg Labor Code sets out a certain number of rules for protection against retaliation in the event of whistleblowing in matters of occupational safety, sexual harassment and discrimination, moral harassment or in the context of the fight against corruption.
- The Luxembourg Penal Code provides that failure to inform the judicial or administrative authorities of a crime that can be prevented or limited is punishable by imprisonment and a fine between EUR 251.– and EUR 45,000.–.
Furthermore, in order to raise public awareness about whistleblowing in Luxembourg, the non-profit association ‘StopCorrupt' participates in the improvement of the Luxembourg system to fight corruption and promotes transparency. In addition, this association assists and advises people who witness corruption and wish to report it. This association has set up numerous projects to ensure greater transparency and to fight against corruption in Luxembourg, in particular with the ‘Speak Up' project which aims to promote the involvement of citizens in the fight against corruption.
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