CONDITIONS FOR PROTECTION

At what point is an act or omission considered a violation?

An act or omission is considered a violation if it is unlawful and related to specific area (see link 'In which areas can notices be given?'). Acts or omissions are also considered a violation if they are abusive practices that do not appear to be illegal from a formal point of view, but are incompatible with the aim or purpose of the legislation. Suspicion is sufficient, but it must be well-founded. Information that is already publicly available in full or that is unfounded speculation or rumor is not considered a violation. Violations may also be those that are very likely to occur. Attempts to conceal such breaches may also be reported.

The whistleblower

A whistleblower is someone who reports a wrongdoing, usually before possible negative consequences occur. In a figurative image, he blows a whistle ('to blow the whistle'). It can be one of the following: Employees, self-employed persons, shareholders of a company, persons who belong to the management or supervisory body, members of this company, volunteers, paid or unpaid interns, persons working under the supervision and management of contractors, subcontractors and suppliers, persons whose employment has since ended; persons who are in the process of recruitment or have obtained information about violations in pre-contractual procedures.

At what point is a whistleblower protected?

Various conditions must be met in order to be entitled to protection under the Decree of February 21, 2022 'establishing various instruments of information and complaint management in the German-speaking Community':
- The whistleblower must have sufficient reason to believe that the reported information about violations was true at the time of the report;
- The information must concern the following authorities and institutions: see Institutions & Authorities
- The information must hit the sectors listed here: see reports
- The institution or agency must not have adequately assessed or investigated the violation or taken appropriate corrective action;
- There must be a close connection between the report and the reprisal suffered directly or indirectly by the whistleblower;
- These tips must have been reported either to the authority itself or to the Ombudsdienst der Deutschsprachigen Gemeinschaft.

Does the protection only apply to the whistleblower?

In addition to the whistleblower, the protection also applies to the intermediary, to certain third parties and to certain legal entities. The intermediary is a natural person who confidentially assists the whistleblower in the reporting process. By certain third parties is meant persons, such as colleagues and relatives, who are associated with the whistleblower and could suffer reprisals in a professional context. The protection also applies to legal entities owned by the whistleblower or for whom the whistleblower works or with whom the whistleblower is otherwise professionally associated. Individuals who have reported or disclosed information about violations anonymously, but have subsequently been identified and suffer reprisals, are also entitled to protection. They are also afforded protection if, as a result of the disclosure, they have reasonable cause to believe that there is an imminent or manifest danger to the public interest or a risk of irreversible harm (such as to the physical integrity of an individual). Persons who first reported information about violations to the competent authorities of the European Union receive equal protection. All such persons fall under the category of 'protected persons.'

Which authority or institution must be affected by the notice?

In order for the Ombudsman Service of the German-speaking Community to take action, the notice of violation must involve one of the following authorities or institutions:
a) an authority of the German-speaking Community
b) an institution under public law that is dependent on the German-speaking Community
c) a municipality, a public social welfare center and other local authorities and intermunicipalities of the German-speaking Community, with the exception of multi-municipal police zones and assistance zones;
d) any institution, irrespective of its nature and legal form, which, on the one hand, has been established to perform tasks in the general interest, which, on the other hand, has a legal personality and whose activities are financed by or subject to the supervision of the authorities and institutions mentioned under a) to c) above, or whose administrative, managerial or supervisory body consists of a majority of members appointed by these authorities or institutions;
e) the association created by one or more of the administrations named in a), b), c) or d).

In what areas can guidance be provided?

Adopted guidance on dealing with public procurement, environmental protection, public health, consumer protection, privacy and personal data protection, and network and information systems security.

Furthermore, it is possible to report: Violations contrary to the financial interests of the European Union, violations of EU internal market rules, violations of Union rules on competition and state aid, violations of internal market rules in relation to acts that violate corporate tax rules, violations in relation to agreements aimed at obtaining a tax advantage contrary to the aim or purpose of the applicable corporate tax law.

The following are excluded:
National security references, classified information as defined in the Act of December 11, 1998 on Classification and Security Authorizations, Certificates and Opinions, attorney and medical professional secrets, judicial advisory secrets, criminal procedure law.

References to other areas may be examined by the Ombudsman Service within the scope of its general competence.

What are reprisals for the purposes of whistleblower protection?

Reprisals are direct or indirect actions or omissions in a professional context that are triggered by an internal report to the authority or institution concerned itself, to the ombudsman service or in a disclosure, and that cause the whistleblower to suffer an unjustified disadvantage.
CONTACT DATA

Where can I file a notice of violation?

You can report a violation to the internal reporting channel of the authority or institution concerned or directly to the Ombudsman Service of the German-speaking Community. Internal reporting is the best way to bring information to the attention of individuals who can contribute to the early and effective prevention of threats to the public interest. Individuals should contact the Ombudsman Service directly if the employee ultimately responsible is involved in the violation, there is a risk that the violation may be concealed, or evidence relating to it may be suppressed or destroyed. If there are violations of Union law, whistleblowers may also contact the external channels of the European Union directly (OLFA and the European Public Prosecutor's Office).

How can you send your tip confidentially to the Ombudsperson?

The way you submit your tip to the ombudsman service is called a reporting channel. The reporting channels of the Ombudsman Service of the German-speaking Community are designed, set up and operated in such a secure manner that the confidentiality of your identity as a whistleblower and of third parties mentioned in the report is maintained and unauthorized persons are prevented from accessing them.

- via Internet: https://www.dg-ombudsdienst.be/en/whistleblower.htm
- by email: (it is best to use a private email address as the sender).
- by letter: Ombudsfrau, Platz des Parlaments 1, 4700 Eupen, (without writing your name and address on the envelope)
- by phone: 0800 98759 (phone calls will not be recorded, phone messages will be deleted after being noticed)
- in person by appointment.

Comments made by telephone and in person will be written down completely and accurately in the form of a record of the conversation and submitted to the person for approval or correction.
PROCEDURAL REQUIREMENTS

What happens after submitting the report?

Information provided by telephone or in person is written down completely and accurately in the form of a record of the conversation and submitted to the person for approval or correction.
Within seven days of receipt of the report, the whistleblower will receive confirmation of his or her submission - unless the whistleblower has expressly objected.
If the ombudsman service is not responsible for investigating the report, it will forward it to the appropriate reporting channel after consulting with the whistleblower.
If the Ombudsman Service determines that the reported information is too imprecise or that additional information is still missing, it requests the whistleblower to provide it with this information as soon as possible.
The ombudsman service then investigates the report.

In what cases can the Ombudsman Service close an investigation early?

In two cases, the Ombudsman Service is permitted to close the investigation early: If the investigation reveals that the reported violation is clearly minor (e.g., violation of ancillary provisions, such as provisions on documentation and notification requirements). Or if it is a repeated report for which, in comparison with a previous report, the procedure has been completed in a catchy manner and no new relevant information is available. In these cases, the Ombudsman Service will inform the whistleblower of the reasons.

Within what period of time must the Ombudsman Service investigate a report?

The Ombudsman Service has three months to consider the information about the violation. Due to the nature and complexity of the subject of the report, the Ombudsman Service may extend the period by another three months to a total of six months. When receiving numerous reports, the Ombudsman Service gives priority to reports of serious violations or violations of essential provisions. The Ombudsman Service keeps a register of the number of reports received, the number of investigations and legal proceedings initiated as a result of the reports, and their outcomes. If determined, the register also maintains the estimated financial loss and amounts recovered following investigations and legal proceedings into the reported violations.

When does feedback occur and what is its content?

Three months after submitting the report or sending the acknowledgement of receipt, the whistleblower receives feedback. As part of the feedback, the ombudsman service informs the whistleblower about the follow-up measures planned or taken and the reasons for the follow-up measures.
CONFIDENTIALITY ARRANGEMENTS

Your tip will be treated confidentially!

The confidentiality rules for notifications and in particular those for information on the processing of personal data in accordance with the General Data Protection Regulation apply;

Can you be held liable because of your tip?

As a whistleblower, you are under special protection of Article 33 of the 'DECREE ON THE ESTABLISHMENT OF VARIOUS INSTRUMENTS OF THE INFORMATION AND PROTECTION MANAGEMENT IN THE GERMAN COMMUNITY' of 21 FEBRUARY 2022. You cannot be held liable for breach of confidentiality if the reporting or disclosure of the information was necessary to detect a violation. The condition for this is that obtaining or accessing the information that is reported or disclosed does not in itself constitute an independent criminal offense. However, it must not be reports concerning the following areas: protection of national security, protection of classified information, protection of the legal and medical profession, judicial secrecy and criminal procedure law. In that case, the disclaimer does not apply.

In which exceptional cases can the identity of the whistleblower be disclosed?

It is only possible to disclose the identity of the whistleblower in two cases: (1) if he or she expressly consents to the disclosure of his or her identity, or (2) if there is a necessary and proportionate duty in the context of the investigation by the Ombudsman Service or judicial proceedings, in particular with a view to safeguarding the rights of defense of data subjects. Affected persons, are those designated to have committed the violation or persons related to the designated person. In this case, the whistleblower is informed in advance about the disclosure of his identity, unless such information could jeopardize the investigation or court proceedings. In that case, the Ombudsman Service shall provide him with a written explanation of the reasons for the disclosure.
NATURE OF THE FOLLOW-UP MEASURES

What is meant by follow-up?

Follow-up actions are all actions taken by the Ombudsman Service: checking the validity of the allegations made in the report, asking for additional information, taking action against a violation if necessary, internal investigations, involving competent authorities (such as law enforcement authorities, authorities that can recover funds) including ensuring that this other authority takes follow-up action, taking supporting measures and closing the case.
REMEDIES / PROCEDURES FOR PROTECTION AGAINST REPRISALS / ADVICE TO POSSIBLE WHISTLEBLOWERS

What supportive measures can protected persons expect?

Protected are the whistleblowers, their intermediaries, third parties (such as relatives or colleagues of the whistleblower) as well as legal entities of the whistleblowers (see Does the protection only apply to the whistleblower?).
Whistleblowers, intermediaries, as well as relatives and colleagues of the whistleblower or the whistleblower's legal entities are entitled to
a) Information and advice;
b) effective assistance in protection against reprisals by the Ombudsman's Office effectively establishing contact with the authorities involved in protection against reprisals and following their progress;
c) on the part of the Federal State, legal aid in criminal and cross-border civil proceedings, legal advice and other legal assistance (such as full reparation for the harm suffered, the right to a fair trial, respect for the presumption of innocence, and rights of defense, including the right to inspect files and the right to be heard;
(d) the protection of their identity during the proceedings.

What information and advice can (potential) whistleblowers receive?

The Ombudsman Service provides information about the rights of data subjects, remedies and procedures against reprisals. Individuals also receive information and advice if they are only considering reporting a whistleblower.
Questions such as, 'Does the reported information fall under the applicable whistleblower protection provisions?', 'Which reporting channel is most appropriate?', and 'What alternative procedures will be followed if the information does not fall under the applicable provisions?' are answered. ' are answered. The information and advice is comprehensive, independent and free of charge.

Do you want advice first before making a report?

This is possible. You will receive information on guarantees of confidentiality, on remedies and on procedures for protection against reprisals.

Which kind of reprisal is prohibited against a whistleblower?

Authorities are prohibited from one of the following reprisal against a whistleblower, including threats of reprisal or attempts to:
1. suspension, termination, or similar action;
2. demotion or denial of promotion;
3 .transfer of duties, change of work location, reduction in salary, change in working hours;
4 .denial of participation in continuing education;
5 .Negative performance appraisal or issuance of a poor job reference;
6 .disciplinary action, reprimand or other sanction, including financial sanctions;
7. coercion, intimidation, bullying or exclusion;
8. discrimination, disadvantageous or unequal treatment;
9. failure to convert a fixed-term employment contract into a permanent employment contract in cases where the employee could reasonably expect to be offered a permanent employment contract;
10. non-renewal or premature termination of a fixed-term employment contract;
11. damaging and damaging reputation, especially in social media, or causing financial losses, including loss of orders or revenue;
12. recording of the whistleblower on a 'black list' on the basis of an informal or formal sector- or industry-specific agreement, with the consequence that the whistleblower is no longer employed sector- or industry-wide;
13. premature termination or cancellation of a contract for goods or services;
14. revocation of a license or permit;
15. psychiatric or medical referrals.
 

siehe auch