Recital 100
Directive on the protection of persons who report breaches of Union law · UE 2019/1937
| (100) | The rights of the person concerned should be protected in order to avoid reputational damage or other negative consequences. Furthermore, the rights of defence and access to remedies of the person concerned should be fully respected at every stage of the procedure following the report, in accordance with Articles 47 and 48 of the Charter. Member States should protect the confidentiality of the identity of the person concerned and ensure the rights of defence including the right of access to the file, the right to be heard and the right to seek effective remedy against a decision concerning the person concerned under the applicable procedures set out in national law in the context of investigations or subsequent judicial proceedings. |
In Luxembourg, the law of 16 May 2023 requires entities of 50 employees or more (no threshold for public bodies) to set up an internal reporting procedure that explicitly guarantees the confidentiality of the person concerned and the respect of defence rights. Failing to ensure an adversarial process triggers criminal penalties (fines from 1,250 to 25,000 EUR, doubled in case of repeat offence) and civil risk before the labour tribunal, which annuls dismissals based on non-adversarial investigations.
Luxgap practice: we recommend explicitly setting in the internal procedure the hearing deadline (5 to 10 working days after notification of the facts), the scope of file access and the internal appeal route, and tracing each step with qualified timestamping to produce a file enforceable before both the OFRS and the ITM.
