Recital 41
Directive on the protection of persons who report breaches of Union law · UE 2019/1937
| (41) | Protection should be provided against retaliatory measures taken not only directly vis-à-vis reporting persons themselves, but also those that can be taken indirectly, including vis-à-vis facilitators, colleagues or relatives of the reporting person who are also in a work-related connection with the reporting person's employer or customer or recipient of services. Without prejudice to the protection that trade union representatives or employees' representatives enjoy in their capacity as such representatives under other Union and national rules, they should enjoy the protection provided for under this Directive both where they report in their capacity as workers and where they have provided advice and support to the reporting person. Indirect retaliation also includes actions taken against the legal entity that the reporting person owns, works for or is otherwise connected with in a work-related context, such as denial of provision of services, blacklisting or business boycotting. |
In Luxembourg, the law of 16 May 2023 on the protection of whistleblowers fully transposes recital 41 and explicitly extends protection to facilitators, third parties connected to the whistleblower and associated legal entities. The Office des rapports de signalement (OFRS) is competent to receive complaints for indirect retaliation, and criminal sanctions range from EUR 1,250 to EUR 25,000 (doubled in case of recidivism), cumulative with civil damages before the labour court. The burden of proof is reversed: the employer must demonstrate that the measure taken against the facilitator, colleague or related entity is not retaliation.
Luxgap practice: trace every HR or commercial decision affecting the whistleblower's extended circle with a timestamped objective justification, to be able to rebut the presumption before the OFRS or ITM.
