On 21 August 2024, the Belgian Competition Authority (BCA) published its cooperation agreement with the Federal Ombudsman. The cooperation agreement aims to facilitate the sharing and handling of potential breaches of competition law reported under the Act on the Protection of Whistleblowers of 28 November 2022 (the Whistleblowing Act), which transposes the EU Whistleblowing Directive into Belgian law.

Background

In Belgium, the government has designated no fewer than 24 different authorities competent to receive whistleblower reports, provide feedback and conduct follow-ups on these reports. The BCA is authorised to receive reports of infringement of national and European competition rules. The role of coordinating whistleblower reports has been assigned to the Federal Ombudsman. 

In practical terms, this means that whistleblowers wishing to report a possible breach of competition law can approach both the BCA and the Federal Ombudsman. The cooperation agreement now formally allows the Federal Ombudsman to share such notifications with the BCA, and generally organises the collaboration between the two authorities. 

The cooperation agreement

The cooperation agreement delineates the jurisdiction of both the BCA and the Federal Ombudsman. It establishes the protocol for sharing reports from whistleblowers concerning potential infringements of competition law with the BCA. Importantly, the agreement does not change the BCA's legal obligation of professional secrecy. Consequently, the BCA is not mandated – and in many instances, will not be able – to share the reports it acquires with the Federal Ombudsman.

The agreement also sets out the procedure in case multiple authorities have jurisdiction over varying aspects of a whistleblower notification and aims to guarantee adherence to data protection laws. It also includes obligations to exchange statistics and best practices. Parties must also evaluate the cooperation every three years.

Call to Strengthen Compliance Structures 

In practical terms, the cooperation agreement could serve as an additional source of intelligence for the BCA regarding potential contraventions of competition law. In this way, it complements traditional sources such as complaints or leniency and immunity applications.[1] In October 2022, the BCA also introduced an online reporting system, enabling individuals to anonymously report any activities that may breach competition law.

The cooperation agreement also clarifies that whistleblowers have multiple options to voice their concerns externally. This could increase the likelihood of their report instigating an investigation. To address any potential competition law breaches internally first, companies may want to:

• Implement an effective compliance programme. Prevention of breaches remains the optimal solution.
• Regularly conduct targeted internal investigations to uncover competition law breaches. As management and/or legal and compliance departments may not be aware of breaches occurring elsewhere within the company, internal investigations can be useful to manage compliance risks effectively.
• Ensure internal reporting channels are effective. The Belgian Whistleblower Act already stipulates a minimum standard for numerous companies, but it is essential to ensure that the channels are not only compliant but also work in practice. In addition, irrespective of the size of your operation, companies without a formal obligation to establish a whistleblower hotline may also want to consider whether some form of reporting channel might still be warranted. 

For more information, please contact Baptist Vleeshouwers and David Wouters. 

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[1] In Belgium, companies may apply for leniency to obtain full or partial reduction from fines. In addition, individuals may apply for immunity, to avoid prosecution altogether.