Recital 90
Directive on the protection of persons who report breaches of Union law · UE 2019/1937
| (90) | Competent authorities should provide reporting persons with the support necessary for them to access protection effectively. In particular, they should provide proof or other documentation required to confirm to other authorities or courts that external reporting has taken place. Under certain national frameworks and in certain cases, reporting persons may benefit from forms of certification of the fact that they meet the conditions of the applicable rules. Notwithstanding such possibilities, they should have effective access to judicial review, whereby it is for the courts to decide, based on all the individual circumstances of the case, whether they meet the conditions of the applicable rules. |
In Luxembourg, the Office des rapports de signalement (OFRS) created by the law of 16 May 2023 on whistleblower protection is the transversal external authority issuing the certificate referenced in recital 90. Article 17 of this law enshrines the retaliation presumption: any adverse measure taken after a report is presumed connected to it, and the employer bears the burden of proving otherwise. Criminal sanctions for obstruction or retaliation range from EUR 1,250 to 25,000, doubled in case of recidivism, on top of full civil indemnification.
Luxgap practice: always require the employee invoking whistleblower status to disclose the OFRS file number (or CSSF, CNPD, ITM depending on sector) before any HR decision, and have the legal qualification validated by counsel before any adverse measure, even seemingly neutral ones.
