Alerting the Competition Authority
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Whistleblowers who report breaches of rules of law (administrative, criminal or other) are protected against all forms of retaliation.
A uniform European legal framework has been created to protect whistleblowers in certain fields of action of the European Union.
In Luxembourg, for the sake of consistency and accessibility, whistleblower protection extends to breaches of national law.
You can contact the Office for Whistleblowers (Office des signalements) to obtain general information on the competent authority for the type of report in question.
Luxembourg has 22 competent authorities, including the Competition Authority (Autorité de la concurrence), which collects reports concerning breaches:
- relating to competition law, in the case of:
- anti-competitive practices such as prohibited agreements between businesses (cartel arrangements) or abuse of a dominant position;
- foreign subsidies which distort the internal market;
- relating to digital markets, in the case of:
- harm to the collective interests of businesses using online platforms (Platform to Business - P2B);
- non-compliance with the rules governing digital market access controllers, known as 'gatekeepers' (Digital Markets Act - DMA);
- violation of the rules governing digital services (Digital Services Act - DSA);
- relating to agricultural and food supplies, in the case of:
- unfair commercial practices (UCP) on the part of buyers in relation to their less powerful suppliers;
- relating to collective interests of undertakings in the internal market.
Persons who take retaliatory measures or who bring vexatious proceedings against whistleblowers are liable to a fine of between EUR 1,250 and EUR 25,000.
Who is concerned
Whistleblowers working in the private or public sector who have acquired information concerning breaches in a work-related context (current, past or future employment relationship), such as:
- salaried workers (including civil servants and State employees);
- self-employed persons;
- shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members;
- volunteers and paid or unpaid trainees; and
- any persons working under the supervision and direction of contractors, subcontractors and suppliers.
The protection also extends to:
- facilitators (natural persons assisting whistleblowers on a confidential basis);
- colleagues or relatives of the whistleblower who could suffer retaliation;
- legal entities that the whistleblower owns, works for or is otherwise connected with in a work-related context;
- persons who have reported or disclosed information on breaches anonymously, but who are subsequently identified and suffer retaliation;
- persons reporting breaches to relevant institutions, bodies, offices or agencies of the European Union.
The protection in question does not apply to:
- reporting of breaches relating to national security; and
- whistleblowers whose relationships are covered by:
- medical confidentiality;
- the confidentiality of lawyer-client relations;
- the professional secrecy to which a notary or court bailiff is bound;
- the secrecy of judicial deliberations;
- rules on criminal procedure.
How to proceed
What can be reported?
As a whistleblower, you can report any breach of national law and/or European Union law, that is to say, acts or omissions that:
- are unlawful; or
- defeat the object or the purpose of the directly applicable rules of national law or European law.
You can communicate any information, including reasonable suspicions, concerning
- actual or potential breaches; and/or
- attempts to conceal such breaches,
which have occurred or are very likely to occur
- in the organisation in which you work or have worked; or
- with which you are or have been in contact through your work.
Please note: You may not disclose information which you have acquired or to which you have gained access by committing a criminal offence.
What are the conditions for protection?
To be protected against all forms of retaliation, you must:
- have had reasonable grounds to believe that the information on breaches reported was true at the time of reporting and that such information fall within the scope of the law; and
- have made a report:
- either internally: through the reporting channels of your undertaking or administration;
- or externally: through the reporting channels of the competent authority;
- or by way of public disclosure: following external reporting that yielded no satisfactory result.
What protections are in place?
No liability attaching to whistleblowers
If you fulfil the conditions for protection of whistleblowers, you will not be breaking the law when you disclose information, and you will not incur any liability:
- as regards the reporting (done internally and/or externally) or the public disclosure, provided you had reasonable grounds to believe that the reporting or public disclosure was necessary in order to reveal a breach of the law;
- as regards the way in which the information reported or publicly disclosed, or access to that information, was acquired (provided that such acquisition or access did not constitute a self-standing criminal offence);
- on account of reports or public disclosures made, including in legal proceedings for defamation, breach of copyright, breach of secrecy, breach of data protection rules or disclosure of trade secrets, or for compensation claims based on private, public, or collective labour law.
In such cases, you may rely on that reporting or public disclosure to seek dismissal of the proceedings.
Prohibited retaliation measures
All forms of retaliation against you as a whistleblower on account of the report made by you, including threats of retaliation and attempts at retaliation, are prohibited.
The following, in particular, are prohibited and automatically null and void:
- suspension of an employment contract, lay-off, dismissal, failure to renew or early termination of a fixed-term employment contract, or equivalent measures;
- demotion or withholding of promotion;
- transfer of duties, change of location of place of work, reduction in wages, change in working hours;
- withholding of training;
- imposition or administering of any disciplinary measure, reprimand or other penalty, including a financial penalty;
- failure to convert a fixed-term employment contract into a permanent one, where you had legitimate expectations that you would be offered permanent employment;
- a negative performance assessment or employment reference;
- early termination or cancellation of a contract for goods or services;
- cancellation of a licence or permit.
The following are likewise prohibited:
- coercion, intimidation, harassment or ostracism;
- discrimination, disadvantageous or unfair treatment;
- harm, including to the person's reputation, particularly in social media, or financial loss, including loss of business and loss of income;
- blacklisting on the basis of a sector- or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry;
- referral to psychiatric or medical treatment.
Action against retaliation measures
As a whistleblower suffering retaliation measures, you have the right, within 15 days following notification of the measures, to apply to the relevant court of competent jurisdiction for a ruling declaring the measures to be null and void and ordering their cessation.
A person who has not pleaded nullity of the retaliation measures, or who has already obtained an order declaring them to be null and void, may still bring a claim for damages.
The Competition Authority recommends that you use the services of a lawyer for any legal action.
Reversal of the burden of proof
As a whistleblower suffering detrimental measures, you are automatically entitled to the benefit of a presumption that the measures in question have been taken against you as retaliation for the reporting.
It is therefore incumbent upon the person who took the measures to establish the reasons for doing so.
Internal reporting
If you wish to report breaches of the law, you are encouraged, preferably, to report the breaches in question through internal channels before resorting to external reporting, unless internal reporting may have negative consequences for you (in the form of retaliation by your employer, for example).
Each private sector entity (upwards of 50 employees) and every public sector body (apart from communes with fewer than 10,000 inhabitants and entities employing fewer than 50 workers) is required to provide internal reporting channels and procedures and to ensure that reports are followed up.
Private sector entities employing between 50 and 249 workers may share resources for receiving and following up reports made internally.
The Office for Whistleblowers can provide information and assistance to anyone wishing to make a report.
External reporting
If you wish to report breaches of the law, you can do so externally by approaching the competent authority:
- either directly;
- or after reporting the same internally.
Reporting to the Competition Authority
If, as a whistleblower, you wish to report breaches falling within the ambit of the competences of the Competition Authority, you can approach the Authority in French, Luxembourgish, German or English:
- via the secure platform 'Report to the Competition Authority' (Alerter l’Autorité de concurrence) on MyGuichet.lu. This is a procedure requiring no authentication (see under 'Online services and forms');
- by email to: alerte@concurrence.etat.lu;
- by telephone at: (+352) 247 84484;
- in person at the registered office of the Competition Authority.
The platform for reporting to the Competition Authority guarantees the comprehensiveness, integrity and confidentiality of the information provided. Only duly authorised members of staff of the Competition Authority have access to it, and they are bound by the duty of professional secrecy.
The Competition Authority does not make recordings of reports made to it over the telephone, but it may draw up accurate minutes setting out the main elements of the conversation which you can subsequently check, rectify and sign by way of approval.
By the same token, the Competition Authority takes care, with your consent, to keep full and accurate accounts of reports made in person, by way of recordings or minutes.
Where reporting is done through other channels or via other members of staff of the Authority, the latter are likewise bound to respect confidentiality concerning your identity or that of the person concerned, and will forward the report without delay to the staff members responsible for handling it.
Follow-up and handling of the report by the Competition Authority
The Competition Authority receives reports falling within its area of competence and ensures that these are followed up.
It may ask the entity to which the report relates, in writing, to provide all such information as it deems necessary, whilst strictly respecting the confidentiality of your identity as the whistleblower.
The Competition Authority takes care, in particular, to:
- acknowledge receipt of the report within 7 days from receipt thereof, unless:
- you explicitly request otherwise; or
- there are reasonable grounds to believe that acknowledging receipt of the report would jeopardise the protection of your identity;
- ensure that it is diligently followed up;
- provide you with feedback within 3 months, or 6 months in duly justified cases;
- communicate to you the final outcome of the steps taken in consequence of the reporting, subject to any information falling within the scope of a legal obligation to observe confidentiality, breach of which is punishable under criminal law.
Where the Competition Authority receives a report which it is not competent to handle, it will forward it within a reasonable time and in a confidential and secure manner to the competent national authority. You will thereafter be kept informed by the latter authority.
Confidentiality and data processing
Confidentiality
The Competition Authority handles all reports in strict confidence as regards the identity of the whistleblower.
The Authority will never disclose:
- either your identity without your explicit consent;
- or any other information from which your identity as a whistleblower may be directly or indirectly deduced.
Where applicable, the Competition Authority will not use or disclose trade secrets for purposes going beyond what is necessary for proper follow-up.
Confidentiality regarding a whistleblower's identity may only be lifted in the case of a necessary and proportionate obligation in the context of investigations by national authorities or judicial proceedings, including with a view to safeguarding the rights of defence of the person concerned.
In such a case, the Competition Authority will inform the whistleblower in writing, with an explanation of the reasons, before disclosing the latter's identity, unless such information would jeopardise the related investigations or judicial proceedings.
Processing personal data
In order to carry out the tasks assigned to it by law, the Authority may need to process personal data concerning you.
All processing of personal data carried out pursuant to the law on the protection of whistleblowers, including the exchange or transmission of personal data by the competent authorities, is done in accordance with Regulation (EU) 2016/679, hereinafter referred to as the 'General Data Protection Regulation' or the 'GDPR'.
As a public authority processing personal data, the Authority is bound to respect the obligations incumbent on it in its capacity as a data controller.
If you have any questions concerning the processing of your personal data by the Authority, you can contact the Authority's data protection officer (DPO) by letter marked for the attention of the DPO, by telephone (+352 247 84728) or by email at the following address: dpo@concurrence.etat.lu.
Decisions taken, and penalties imposed, by the Competition Authority
After assessing the matter, the Competition Authority:
- may decide to close the procedure:
- where the breach is clearly minor (even though other obligations or other procedures may be applied to address the reported breach);
- in case of repetitive reports which do not contain any meaningful new information compared to a past report in respect of which the procedure has been closed;
- sanction the entities (legal persons) referred to in the report.
If the proceedings are closed, the Competition Authority will notify you of its decision and the reasons for it.
Fines
The Office for Whistleblowers may, for its part, impose fines on persons who fail to observe the law on the protection of whistleblowers:
- of between EUR 1,250 and EUR 25,000 if they take retaliatory measures or bring vexatious proceedings against whistleblowers;
- of between EUR 1,500 and EUR 250,000 in particular if they impede the making of a report, refuse to remedy a breach or have failed to put in place the required internal reporting channels (the fine may be doubled if the offence is repeated).
A whistleblower who knowingly reports or publicly discloses false information may be sentenced to a term of imprisonment of between 8 days and 3 months and a fine of between EUR 1,500 and EUR 50,000.
A person making a false report may incur civil liability. An entity suffering damage in consequence of this may claim compensation for the prejudice suffered before a court of law.
Public disclosures
Where, as a whistleblower, you publicly disclose a breach, you are entitled to protection under the law if:
- you have first reported it internally and externally or directly externally, but no appropriate action was taken in response to the report within 3 months from your so doing; or
- you have reasonable grounds to believe that:
- the breach may constitute an imminent or manifest danger to the public interest (such as where there is an emergency situation or a risk of irreversible damage); or
- in the case of external reporting, there is a risk of retaliation or there is a low prospect of the breach being effectively addressed, due to the particular circumstances of the case (such as those where evidence may be concealed or destroyed, or where an authority may be in collusion with the perpetrator of the breach or involved in the breach).
Online services and forms
Who to contact
Lanceur d’alerte
- Address:
- 2a, rue d’Anvers L-1130 Luxembourg Luxembourg
- Phone:
- (+352) 247 84 484
- Email address:
- alerte@concurrence.etat.lu
Related procedures and links
Further information
-
Lanceur d'alerte
sur le site de l'Autorité de la concurrence
-
Whistleblower
on the website of the Ministry of Justice
Legal references
portant transposition de la directive (UE) 2019/1937 du Parlement européen et du Conseil du 23 octobre 2019 sur la protection des personnes qui signalent des violations du droit de l’Union.
