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Providing an Alternative to Silence:
Towards Greater Protection and Support for Whistleblowers in the EU
Country Report: Luxembourg
The project has been funded with support from the European Commission. The sole responsibility lies with the
author and the Commission cannot be held responsible for any use that may be made of the information
contained therein.
With financial support from the Prevention of and Fight against Crime Programme of the European Union.
European Commission – Directorate-‐General Home Affairs
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I. Introduction
The Grand-Duchy of Luxembourg is an independent landlocked country with a small surface of
some 2.600 square kilometers and an overall population of some 537.000 people among which
some 44,5% are of foreign origin. Its main industry providing for roughly one third of its direct
economic activity is its financial services sector.
It is organized as constitutional monarchy based on the civil law system as introduced by
Napoleon Bonaparte in 1804 and subsequent years when the Grand-Duchy of Luxembourg was
part of the French empire. The administrative languages of the country are Luxemburgish,
French and German1i.
The small size of the country and close-knit community made it possible for the country to work
for a long time without certain formal legislation that today are considered as being the backbone
of a free democracy including a comprehensive freedom of information and whistleblower
protection legislation.
While Transparency International Luxembourg as well as other civil society organizations are
still lobbying and fighting for certain legislations to be enacted, as among others a
comprehensive freedom of information legislation, Parliament has enacted a short one-stop
whistleblower protection legislation in 2011.
This legislation can and should be amended so as to reflect modern standards of whistleblower
protection. However its mere existence is an important step in the right direction.
The whistleblower protection legislation is completed under Luxembourg Law by general
provisions including law of tort, recent obstruction of justice legislation and balanced by
provisions on slander and libel as well as law of tort.
Other noteworthy pieces of legislation have in this context been defeated. This is the case most
notably on draft legislation on anonymous witness statements in Court.
Secondary issues seem today more important than an outright amendment of the existing
legislation. Such secondary issues relate to awareness raising within the general population and
relevant actors as well as a positive promotion of the existing legislation.
The whistleblowing protection legislation has not been used to this date in a Court of law,
reflecting either that nobody cared to blow the whistle or that no entity retaliated against a
whistleblower. It must be suspected that the former is closer to the truth. The small size of the
country has as a consequence that fewer cases may emerge.
1 The sole national language is Luxemburgish. Laws are written in French.
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II. Description and assessment of whistleblowing protection laws
Whistleblowing protection has been formally enacted by a law of 13 February 2011
strengthening the means to fight against corruption and amending :
1) the labor law code,
2) the amended law of 16 April 1979 determining civil servants’ status,
3) the amended law of 24 December 1985 determining local civil servants’ status,
4) the code of criminal procedure law, and
5) the criminal codeii
The law of 13 February 2011 (hereafter whistleblowing legislation or whistleblowing protection
legislation) is not dedicated solely to whistleblowing protection but does include provisions on
the fight against corruption amending corruption offences and criminal procedural rules.
Relevant to whistleblowing protection are sections A, B, C and to a lesser extent D of the law.
While the whistleblowing protection legislation amends preexisting codes of laws or statutes, it
is a standalone and comprehensive legislation providing whistleblowing protection. It can
therefore be considered as a one-stop legislation covering both the public and private sector
although obviously the relevant provisions have, by way of the whistleblowing protection
legislation, been inserted in the relevant statutes and codes of law.
The codes of law and statutes which have been amended as per the whistleblowing protection
legislation are mainly labor law as well as the law determining the status of civil servants and
local civil servants. To a lesser extent, the criminal procedural rules have been changed to reflect
changes in other legislations relating to whistleblowing protection. Whistleblowing protection is
therefore seen only as a matter of employment without broader implications.
There are today no other provisions under Luxembourg law relating to whistleblowing protection
except of course general provisions that may apply indirectly to whistleblowing protection,
whistleblowing protection being but a specific case of a more general situation of one person
“blowing the whistle” and thereby making known an improper behaviour that may constitute a
criminal offence.
Indeed Luxembourg law in general authorizes any person to file a criminal complaint or inform,
in the case of employment2, its employer of any fact relevant to criminal offences3 or
wrongdoing4 having been committed.
In such a case, Luxembourg law would not authorize the employer or any other entity to retaliate
against the person who has filed a complaint or informed the employer of any wrongdoing.
2 whether as civil servant or as labour law employee
3 in which case the employer may be informed or a criminal complaint may or must be filed, depending on the
nature of the employment
4 in which case the employer will be informed
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These general rules are kept in check by denunciations or complaints that can be considered as
having being filed wrongfully inclusive of negligently or that are constitutive of libel/slanderiii.
As such, a complaint is considered to be slanderous if, directed against a private person5, the
relevant facts prove not to be a criminal offence and are rejected as such by a court of law. If
directed against a public person, a complaint is considered slanderous if the relevant facts cannot
be proven.
Any wrongful retaliation gives rise to damages covering the actual loss sufferediv. Luxembourg
law doesn’t know the concept of ‘punitive damages’.
Luxembourg law has made it an obligation for civil servants or anybody of authority becoming
aware of a criminal offence as a result of their duty to denounce these facts to the public
prosecutor’s officev. It should be noted here that for reasons unknown to Transparency
International Luxembourg and probably engrained in culture, this provision has rarely been
applied and there are only a few cases known where civil servants have actually denounced facts
that they became aware off in the course of their job.
Parliament has also recently enacted a lawvi on obstruction of justice that makes it a criminal
offence not to report a criminal offence of a certain nature6, including corruption offences, whose
consequences can still be limited or a criminal offence, if its authors are likely to commit further
offences7. It is likewise a criminal offence to destroy, alter or tamper physical evidence of such
crimes.
It should be noted that there is no general obligation for private individuals to denounce criminal
offences known to them.
The scope of the existing whistleblowing protection legislation covers a set of criminal offenses
that can be summarized as relating to corruption, illegal influence peddling or illegal taking of
interest8vii.
In terms of provisions, the whistleblowing protection legislation provides mainly and in essence
for the following :
-
In terms of civil servants and local civil servants, the legislation simply provides that civil
servants having denounced facts according to the general provision of the criminal
procedural law, whereby they have to denounce facts they became aware off during the
execution of their job, cannot suffer any negative influence (financial or otherwise) as a
result thereof. The same would apply if they would testify in a Court of law to such facts.
5 as opposed to public person
6 criminal offences entailing an imprisonment of more than 5 years (“crime” in French as opposed to “délit” or
“contravention”)
7 There are exceptions to this reporting obligation. They include most notably certain family members of the
criminals and people that are covered by professional secrecy rules.
8 « prise illegal d’intérêts », « corruption », « trafic d’influence », « actes d’intimidation commis contre les
personnes exerçant une fonction publique », « corruption privée »
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The provision is worded in such a way that it applies strictly in the relation of civil servants
towards their employer and vice-versa.
-
The whistleblowing protection legislation is worded in a similar way towards private labor
law employees although they are and have never been under an obligation to denounce facts
of criminal nature9. The legislation therefore provides that no employee may suffer any
negative influence (financial or otherwise) for having refused in good faith (thereby
covering situations where the employee erroneously believed the fact to be of the given
nature) to participate or for having signaled such facts to his employer, the public
prosecutor’s office or other authorities having jurisdiction (notably regulatory bodies in
regulated sectors10) or for having testified in a Court of law to such facts. The provision
provides that any employee fired as a consequence will have to be reinstated. Most
importantly the provision changes the burden of proof rule in such a way that if it may be
assumed that the employee is victim of an adverse reaction of its employer, the employer has
the burden of proof to justify that the negative influence on the employee does not stem from
a retaliation against the whistleblowing action.
-
The amendments of the criminal procedural code provide an extension of the civil servants
obligation to denounce facts criminal in nature to persons that are not civil servants but that
are acting in execution of a public service regardless of the provisions governing the
person’s employment. This extension then covers all sorts of contractual agreements, i.a.
consultants, contractors, trainees, etc. The other most important provision that has been
changed is a criminal procedural law which enables Luxembourg ONGs to be approved by
the Government in order to file criminal complaints and by extension other actions in the
fight against corruption. Such a provision existed previously for specific offences relating to
the protection of children and sexual abuse. These provisions have now been extended to
corruption matters and assimilated offences. Transparency International Luxembourg has
requested and received such approval and is now entitled to file criminal complaints in
Luxembourg in cases relating to corruption or assimilated offences. It is the first ONG in
Luxembourg to receive such an approval ever.
While the legislation is a huge step forward it lacks certain key elements:
- It lacks a definition of whistleblowing or of a whistleblower that is sufficiently broad to
encompass all situations. It must however be noted that the definitions may, to a certain
extent, be inferred from the wording of the law and the way the protection is supposed to
work.
- It is limited to private and public (i.e. civil servants) labor law. Whistleblowing is seen as
a mere employment issue.
- More importantly the legislation does not permit the whistleblower to file a complaint to
third party bodies that are not the employer, the public prosecutor’s office11 or the Court.
9 except those covered by the newer law on obstruction of justice (cf. supra)
10 It may be assumed that this would f.i. apply to a denunciation to the regulatory authority of the banking industry.
11 or an entity that has jurisdiction
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It doesn’t likewise allow access to the press in cases where there is no follow-up12.
Transparency International Luxembourg had requested and the Luxembourg government
had accepted to extend the protection to whistleblowers that would file complaints with
third party bodies, such as TI’s ALAC. This led to a government amendment of the draft
legislation which has been refused subsequently by the parliamentary commission on
legal matters. Transparency International Luxembourg had been invited to an exchange
of views with the relevant parliamentary commission but no consensus could be reached
on this subject.
- There is no independent (other than the Courts or the Public Prosecutor as the case may
be) agency or otherwise receiving or investigating complaints of retaliation or improper
investigations.
- The Government has also opted not to provide incentives of any kind to whistleblowers.
TI Luxembourg shares this view.
- There is no review mechanism of the legislation or its application in law or in fact.
12 Notwithstanding the protection of the press’ information sources.
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In summary:
Complete title of law or regulation: law of 13 February 2011 strengthening the means to fight
against corruption and amending :
1) the labor law code,
2) the amended law of 16 April 1979 determining civil servants’ status,
3) the amended law of 24 December 1985 determining local civil servants’ status,
4) the code of criminal procedure law, and
5) the criminal codeviii
Yes
No
Partial Notes
Broad definition
X
The definition needs to be inferred from the
of
context, the protection granted and the wording of
whistleblowing
the law. This however is common practice under
civil law. TI Luxembourg takes the view that the
concept of whistleblowing should be extended,
under certain conditions to whistleblowing outside
of the restricted circle of employer, public
prosecutor (or authority having jurisdiction) and
Court of law and to situations not covered by
private or public labour law. The scope of offences
covered
matches
international
obligations
(corruption, illegal influence peddling or illegal
taking of interest).
Broad definition
X
The definition needs to be inferred from the
of whistleblower
context, the protection granted and the wording of
the law. This however is common practice under
civil law. TI Luxembourg takes the view that the
concept of whistleblowing should be extended,
under certain conditions to whistleblowing outside
of the restricted circle of employer, public
prosecutor (or authority having jurisdiction) and
Court of law and to situations not covered by
private or public labour law.
Broad definition
X
The specific whistleblower protection legislation
of retribution
covers all adverse influence in the employment
protection
context. General law covers all losses suffered,
provided the loss is suffered in a causal relation to a
tort.
Internal reporting
X
The whistleblower is entitled to first reach out to
mechanism
his employer. No formal internal mechanism have
been set up.
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External
X
The external reporting mechanisms are limited to
reporting
the authority having jurisdiction (inclusive of the
mechanism
public prosecutor’s office) and the Court of law.
Other external mechanisms could have been
provided, a.o. an independent third party and the
press.
Whistleblower
X
The whistleblower may remain involved if he so
participation
chooses. In the case of a criminal complaint, the
whistleblower will be heard as witness.
Rewards system
X
Protection of
X
No protection is granted as per the law. The public
confidentiality
prosecutor may however open an investigation on
its own initiative without involving the
whistleblower. This is however at the discretion of
the public prosecutor.
Anonymous
X
The law remains silent on this aspect. However the
reports accepted
public prosecutor’s office may open an
investigation at its own initiative which then
includes the possibility of anonymous reports.
No sanctions for
X
Although the law doesn’t specify, reporting to the
misguided
authority having jurisdiction remains governed by
reporting
slander and libel provisions and thereby by bona
fide reporting.
Whistleblower
X
complaints
authority
Genuine day in
X
court
Full range of
X
remedies
Penalties for
X
No penalties other than reinstatement of a fired
retaliation
employee and payment of damages for loss
suffered.
Involvement of
X
multiple actors
It should be noted that while there is a specific legislation on whistleblowing protection, other
laws or lack thereof have a certain impact on how the whistleblower protection needs to be
considered in the context of Luxembourg law.
- Luxembourg law does have a strong protection of the press’s sourcesix in such a way that
no kind of investigation including judicial investigations can pierce the protection of an
informant to the press except if certain grave criminal offences have been committed. It
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should however also be noted that the press in Luxembourg is largely dependent on
political parties and is largely financed by the government. There is hardly any
independent and impartial press. There is no investigative press in Luxembourg at all.
- Luxembourg also introduced draft legislation on victims’ rights, protection of witnesses
and anonymous witness statements in Courtx. Such legislation has been withdrawn in
relation to anonymous witness statements13xi and there is currently no attempt or political
will to reintroduce anonymous witness statements in Court proceedingsxii.
- Finally Luxembourg law lacks a comprehensive and standalone freedom of information
legislation. There are freedom of information provisions in specific statutes relating to
specific matters14xiii. There is however no global overarching legislation covering all
matters. While this does not mean that entities and in particular ONGs approved
according to the aforesaid provisions cannot request certain information, even in Court,
Luxembourg law would need an overarching and comprehensive freedom of information
legislation. Draft legislation had been introduced by a parliamentarian in 2000xiv and is
still formerly on the dock. There has however, up to a very recent date, been no political
will to push this draft legislation or any other comprehensive freedom of information
legislation forward. This seems to have change recently as a result of a national scandal
which has given cause to a public parliamentary debate not only on the specifics of the
scandal but also on some more general issues as the freedom of information legislation.
13 By way of an amendment of the draft legislation, that covered more generally the victims’ rights.
14 This is the case f.i. in respect to environmental issues (cf. law of 25 November 2005 on access of information in
environmental matters)
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III. Perceptions and political will
Perception of whistleblowing and political will to promote and defend it seems to be the weakest
point in Luxembourg whistleblowing protection legislation. The small size of the country and its
inability to defend itself during times of crisis15 and war16 and in particular as a result of its
overrun by the German forces in World War II has led to a very negative perception on
denunciation in general. Even today the terminology of “denunciation” is very ill seen and many
institutions, public and private, refuse to use the terminology when dealing with whistleblowing.
Denunciation is thus badly seen and badly perceived not only by politicians but also by the
general public at large.
There is no adequate terminology for whistleblowing or blowing the whistle in any of the three
administrative languages.
This together with the fact that Luxembourg as a very small country, tight-knit community and a
very high per capita incomexv has led to a situation where the general public may be largely
unaware of how corruption or assimilated offences are part of business life and how it operates.
It is obvious in such a country that corruption does not take the form of pity corruption. It rather
takes a more subtle form of corruption or traffic of influence in large scale operations.
Transparency International Luxembourg does not believe that whistleblowing at this high level
would entail a negative perception by the general public or the media and large parts of private
and public sector. Rather the difficulty lies in the difficult promotion of the concept of
whistleblower protection and the nature of corruption in the Grand-Duchy of Luxembourg. A
whistleblower would, under these circumstances, need to be part of the middle management with
certain sophistication, degree of education and access to information and people. The potential
to backfire on the individual is enormous as the business community are few, is close and tight-
knit. There is realistically no satisfactory legislative protection which can be provided for this
kind of whistleblowing mitigating the risk in such a small country. It is then not so much the
general public, the media, private or public sector but rather the business and political
community which would perceive very negatively any whistleblowing out of their own center.
The question as to political will in relation to whistleblowing protection is difficult to answer.
Luxembourg has undertaken, as a result of international obligations, to provide whistleblowing
protection. It therefore has enacted the law of 13 February 2011. Nevertheless Transparency
International Luxembourg feels that willingness and political will to further the whistleblowing
protection in not shared by all politicians, be it by amending the existing legislation or be it by
raising awareness and creating centers of competence within public institutions required to deal
with this kind of offences.
15 a small country also means little political influence on an international level and few means of persuasion
16 a small country also means a very small army
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There has been and there is no will to provide incentive for whistleblowing protection.
Transparency International Luxembourg shares this view of the government. This will not be
culturally and historically acceptable under the given circumstances.
In a recent national “case”, possibly suggesting corruption and use of illegal threats between real
estate promoters and government members, an unknown third party has leaked recorded audio
tracks of an ‘interview’ with one of the implied real estate promoters to the press.
The public prosecutor’s office has opened, under its own initiative, a preliminary investigation
into the corruption/use of threats matter, reporting back to Parliament.
Although the party that has leaked the audio track remains unknown, it is not likely that this
unknown party is employed by either the government or one of the other implied parties.
Whistleblower protection legislation is therefore not applicable. One of the real estate promoters
has since filed a criminal complaint for slander/libel against this third party.
Within the public and later parliamentary debate nobody took offence at the lack of
whistleblower protection or commended the unknown third party for having brought the
information to light.
During the Expert Meeting Transparency International Luxembourg organized on 26 September
2013, Mrs. Octavie Modert, Ministry of Justice explicitly stated during her presentation that the
fight against corruption was important to the Government17 and we are then inclined to believe
that the next step will come some day. However, as a result of the elections held on 20 October
2013, Luxembourg has currently no government and Transparency International Luxembourg
will continue its advocacy with the new Ministry of Justice to be appointed.
17 http://www.gouvernement.lu/salle_presse/communiques/2013/09-septembre/27-modert-transparency/index.html
and
http://www.paperjam.lu/communique-de-presse/fr/octavie-modert-participe-une-table-ronde-sur-la-protection-des-
donneurs-d-alerte-de-la-corruption
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IV. Strengths, weaknesses and recommendations
The main strength of the whistleblowing protection legislation is its existence and thereby the
political acceptance of whistleblowing protection and whistleblowing in general. Both the
Government and ONGs as Transparency International Luxembourg need to actively promote the
legislation and intensify awareness raising.
The main weaknesses of the legislation are the lack of possibility to denounce facts to third
parties and the press.
The main weakness of the system however remains the closed-knit community and tied business
and political circles. This is a given in small countries and cannot be changed by way of
legislation but would require small successive steps in changing the culture and political context
of the country.
Transparency International Luxembourg would recommend an amendment of the existing
legislation so as to allow whistleblowers access to independent and impartial third parties as well
as to the press under certain conditions.
Transparency International Luxembourg also recommends active promotion of the existing
legislation, the concept and most importantly its need to the public in general and also to broad
categories and federations of employers.
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V. References and sources
i Loi du 24 février 1984 sur le régime des langues.
http://www.legilux.public.lu/leg/a/archives/1984/0016/a016.pdf#page=6
ii Loi du 13 février 2011 renforçant les moyens de lutte contre la corruption et portant modification
1) du Code du Travail,
2) de la loi modifiée du 16 avril 1979 fixant le statut des fonctionnaires de l’Etat,
3) de la loi modifiée du 24 décembre 1985 fixant le statut général des fonctionnaires communaux,
4) du Code d’instruction criminelle, et
5) du Code pénal.
iii articles 443 to 452 of the Criminal Code
iv articles 1382 to 1384 of the Civil Code
v article 23 of the Code d’Instruction Criminelle (criminal procedural rules)
vi Loi du 10 juillet 2011 portant incrimination des entraves é l’exercice de la justice et portant modification du Code
pénal et du Code d’instruction criminelle
vii Articles 245 to 252, 310 and 310-1 of the Criminal Code
viii Loi du 13 février 2011 renforçant les moyens de lutte contre la corruption et portant modification
1) du Code du Travail,
2) de la loi modifiée du 16 avril 1979 fixant le statut des fonctionnaires de l’Etat,
3) de la loi modifiée du 24 décembre 1985 fixant le statut général des fonctionnaires communaux,
4) du Code d’instruction criminelle, et
5) du Code pénal.
ix Texte coordonné du 30 avril 2010 de la loi du 8 juin 2004 sur la liberté d’expression dans les médias
x Projet de loi renforçant le droit des victimes d’infractions pénales et améliorant la protection des témoins, N°5156
xi Loi du 6 octobre 2009 renforçant le droit des victimes d’infractions pénales et portant modification
– du Code d’instruction criminelle,
– du Code pénal,
– de la loi modifiée du 12 mars 1984 relative à l’indemnisation de certaines victimes de dommages
corporels résultant d’une infraction et à la répression de l’insolvabilité frauduleuse,
– de la loi modifiée du 16 juillet 1986 relative à certains modes d’exécution des peines privatives de liberté,
– de la loi modifiée du 10 août 1992 relative à la protection de la jeunesse.
xii Projet de loi renforçant le droit des victimes d’infractions pénales et améliorant la protection des témoins,
N°5156A
xiii 25 novembre 2005. – Loi concernant l’accès du public à l’information en matière d’environnement
xiv Proposition de loi concernant la liberté d’accès à l’information, N°4676 par M. Alex Bodry, 20 June 2000
xv CIA World Factbook https://www.cia.gov/library/publications/the-world-factbook/rankorder/2004rank.html
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