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15 SEPTEMBER 2013. - Act respecting the denunciation of a suspected breach of integrity within a federal administrative authority by a member of its staff (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Definitions
Art. 2. For the purposes of this Act:
1st staff member: the staff member, the trainee or the staff member under a contract of employment;
2° Federal Administrative Authorities: Federal Administrative Authorities Subject to Article 14, § 1^er1°, laws on the Council of State, coordinated on 12 January 1973;
3° suspected damage to integrity: suspicion
(a) the execution or omission of an act by a staff member, which constitutes an offence to the laws, decrees, circulars, internal rules and internal procedures applicable to federal administrative authorities and their personnel;
(b) the performance or omission of an act by a staff member, involving an unacceptable risk to the life, health or safety of persons or to the environment;
(c) the performance or omission of an act by a staff member, manifestly demonstrating a serious breach of professional obligations or the proper management of a federal administrative authority;
(d) a staff member has knowingly or advised to commit an integrity breach as referred to in (a), (b) and (c);
4° point of contact: the person of integrity trust, as a point of contact in the internal component of the system of denunciation of a suspected breach of integrity, and the "Central Contact Point for Suspected Integrity Offences" with federal mediators, as an external component of the system of denunciation of a suspected breach of integrity.
Paragraph 1^er, 3°, does not aim:
1° moral harassment of persons referred to in Article 2, § 1^er1°, of the Act of 4 August 1996 on the welfare of workers during the execution of their work;
2° Discrimination based on:
(a) age, sexual orientation, civil status, birth, fortune, religious or philosophical conviction, political conviction, trade union conviction, language, current or future health status, disability, physical or genetic characteristics or social origin within the meaning of Article 4, 4°, of the Act of 10 May 2007 to combat certain forms of discrimination;
(b) sex, pregnancy, childbirth or maternity within the meaning of articles 3 and 4 of the Act of 10 May 2007 to combat discrimination between women and men;
(c) nationality, alleged race, skin colour, ascending or national or ethnic origin within the meaning of Article 3 of the Act of 10 May 2007 amending the Act of 30 July 1981 to suppress certain acts inspired by racism and xenophobia.
CHAPTER 3. - The denunciation system
Art. 3. § 1^er. The system of denunciation of a suspected breach of integrity is used for the denunciation of a suspected breach of integrity committed within the federal administrative authorities by a staff member in service activity within one of these authorities.
§ 2. On the proposal of the competent ministers for integrity control and public service in the federal administrative authorities, the King shall, by order deliberately in the Council of Ministers, determine the modalities for the creation, organization, operation, responsibilities, powers, roles, functions and selection of the internal component of the system of denunciation of a suspected breach of integrity, as well as any other necessary modality, unresolved in the internal component
As part of the internal component, each federal administrative authority has one or more people of linguistic integrity confidence who act as a point of contact.
§ 3. It is created, with federal mediators, the "Central Contact Point for Suspected Integrity Offences", which represents the external component of the system of denunciation of an Integrity Suspected Offence, below referred to as the Central Contact Point. The Central Contact Point is part of the services of federal mediators.
Federal mediators of the federal administrative authorities carry out their duties under this Act. By derogation from Article 1^er, paragraph 2, of the Act of 22 March 1995 establishing federal mediators, federal mediators also carry out these missions within the federal administrative authorities that have their own mediators by a particular legal provision.
Federal mediators are responsible for the management and management of the external component for the denunciation of a suspected breach of integrity. The training and status of staff at the Central Contact Point are defined in accordance with section 19 of the Act of 22 March 1995 establishing federal mediators.
Art. 4. A staff member who is considering denouncing a suspected breach of integrity may always be informed and advise on the content and application of this Act by a person of integrity trust, the Central Contact Point or the federal administrative authority that reports to the appropriate minister for integrity control in federal administrative authorities.
Art. 5. The staff member denounces a suspicious breach of integrity:
1° that took place in the previous five calendar years, that is or is about to take place within a federal administrative authority;
2° that is based on reasonable presumption.
CHAPTER 4. - Prior notice
Art. 6. § 1^er. Staff who wish to act in accordance with Article 8, § 1^er, first requests, in writing, a prior notice to a person of confidence in the integrity of the federal administrative authority in which he is in service activity.
The staff member who wishes to act in accordance with Article 8, § 2, first requests, in writing, a notice before the Central Contact Point.
§ 2. The request for a prior notice must be supported by elements that make it possible to assume, on the basis of a presumption of good faith and reasonableness, that the breach of integrity took place in the previous five years, takes place or is about to take place within a federal administrative authority.
The prior notice request contains at least the following:
1° the date of submission of the request for prior notice;
2° the name and contact details of the staff member requesting the prior notice;
3° the name of the federal administrative authority where the staff member is in service activity;
4° the name of the federal administrative authority concerned by the suspected breach of integrity;
5° the description of the breach suspected to integrity;
6° the date or period at which the alleged breach of integrity took place, takes place or will take place.
§ 3. The request for prior notice, supplemented by the elements referred to in § 2 of this article, is supplemented and signed by the staff member and transmitted, as the case may be, to the person with confidence in integrity or to the Central Contact Point.
§ 4. No later than two weeks after the date of receipt of the request for a prior notice, the person with confidence in integrity or the Central Contact Point may summon the staff member who has requested the prior notice to clarify the elements of the prior notice request.
Where applicable, the integrity trusted person or the central contact point and the staff member who requested the prior notice shall jointly determine the terms and conditions, such as the date, place and form, of explanations relating to the prior notice.
The Integrity Trustee or Central Contact Point confirms to the staff member who has requested prior notice the terms and conditions of the prior notice explanation.
The explanation of the elements of the prior notice request must be completed no later than four weeks after the date of receipt.
§ 5. No later than six weeks after the date of receipt, the person with confidence in integrity or the Central Contact Point shall render a written and substantiated opinion on the admissibility and manifest validity of the alleged breach of integrity on the basis of the elements contained in the prior notice application and, where appropriate, the explanations for the prior notice.
§ 6. At the latest, no later than eight weeks after the date of receipt, the person with confidence in integrity or the Central Contact Point shall, in writing, communicate the notice to the staff member who requested the notice.
The notice is favourable if the person with confidence in integrity or the Central Contact Point considers that the alleged breach of integrity is admissible and manifestly justified.
In any other case, the notice is unfavourable. Where the notice is unfavourable because the denunciation of a suspected breach of integrity is inadmissible, although clearly founded, the person with confidence in integrity or the Central Contact Point shall accompany this notice of recommendations relevant to the attention of the staff member who requested the prior notice.
§ 7. At any time, a staff member who has requested a notice may address the Central Contact Point if he or she considers that the processing of his or her request for advice from the trustee may be subject to a lack of confidentiality or guarantees of independence. In this case, it is the procedure for denunciations, as defined in Article 8, § 2, which is applicable.
Art. 7. § 1^er. If a person with confidence in the integrity of a federal administrative authority renders an unfavourable opinion and the staff member who has requested the prior notice cannot subscribe to the content of the notice, the latter may, no later than ten weeks after the date of receipt referred to in Article 6, § 4, paragraph 1^er, its request for prior notice for review at the Central Contact Point, supplemented by the notice referred to in Article 6, § 6.
§ 2. The Central Contact Point shall communicate its written notice and not later than twelve weeks after the date of receipt referred to in Article 6, § 4, paragraph 1^er, to the staff member who requested a review of his or her prior notice application and to the trustee referred to in § 1^er.
The notice is favourable when the Central Contact Point considers the denunciation of the suspected breach of the integrity admissible and manifestly justified.
In any other case, the notice is unfavourable.
Where the notice is unfavourable because the denunciation of a suspected breach of integrity is inadmissible, but clearly founded, the Central Contact Point shall accompany this notice of recommendations relevant to the attention of the staff member who has requested a review as provided for in § 1^er.
CHAPTER 5. - Denunciation of the suspected integrity breach
Art. 8. § 1^er. A staff member shall inform, in good faith and on the basis of reasonable suspicion, his or her functional superior or a supervisor of a suspicious breach of integrity committed within the federal administrative authority in which he or she is occupied. The relevant functional or hierarchical superior respects the confidentiality of the identity and legal status of this staff member and ensures that there are no adverse consequences.
If a staff member does not wish to inform his/her functional superior or supervisor of a suspicious breach of integrity committed in the federal administrative authority in which he/she is occupied, he/she shall denounce it to the person with confidence in integrity. At the same time, the staff member communicates to the integrity trustee their choice between:
1° a public denunciation, in which it expressly and in writing authorizes the person of integrity trust to disclose his or her identity, or
2° a confidential denunciation, in which the person of integrity trust treats the identity of the staff member in a confidential manner, protects them to the maximum extent and reveals it to no one, within the limits of existing legislation, without the express written authorization of the staff member concerned.
§ 2. A staff member denounces the Central Contact Point:
1° in the absence of an integrity trustee in the federal administrative authority in which he is occupied;
2° where he does not wish to inform his/her functional superior or supervisor of a suspicious breach of integrity committed in the federal administrative authority in which he/she is occupied, nor does he wish to denounce this suspected breach of integrity to the person of confidence in the integrity of his/her federal administrative authority;
3° where his denunciation concerns a suspected breach of integrity in a federal administrative authority where he is occupied, and suspects that the highest hierarchical superior of that federal administrative authority is involved in it;
4° where his denunciation concerns a suspected breach of integrity in a federal administrative authority where he is not occupied.
Art. 9. § 1^er. A staff member who receives a favourable notice confirms to federal mediators no later than two weeks after the date of receipt referred to in Article 6, § 6, or Article 7, § 2, paragraph 1^erthe denunciation of the suspected breach of integrity.
At the same time, the staff member communicates to federal mediators its choice between:
1° a public denunciation, in which it expressly and in writing authorizes federal mediators to disclose their identity, or
2° a confidential denunciation, in which federal mediators treat the identity of the staff member in a confidential manner, protect it to the maximum extent and disclose it to no one, within the limits of the legislation in force, without the express written authorization of the staff member concerned.
§ 2. No later than 14 weeks after the date of receipt referred to in Article 6, § 4, paragraph 1^er, the federal mediators are denouncing the suspected breach of integrity to the knowledge of the highest hierarchical superior of the federal administrative authority concerned by the denunciation of the suspected breach of integrity.
If the denunciation of the suspected breach of integrity suggests, however, that the highest reporting officer of the federal administrative authority in which the suspected breach of integrity occurred is involved in this breach, the federal mediators inform the Minister of which the federal administrative authority or the management committee of the public social security institution concerned with the suspected breach of integrity is responsible.
CHAPTER 6. - Investigation into the denunciation of the suspected breach of integrity
Section 1^re. - The warrant of investigation
Art. 10. § 1^er. After the application of Article 9 and not later than fifteen weeks after the date of receipt referred to in Article 6, § 4, paragraph 1^er, federal mediators initiate an investigation into the alleged breach of integrity.
§ 2. Federal mediators who lead and coordinate the investigation:
(1) apply general principles of good administration and respect the rights of defence;
2° duly and conscientiously document and justify any act and decision;
3° establish in writing the warrant for investigation into the alleged breach of integrity.
§ 3. Federal mediators may be assisted by experts to carry out the investigation of a suspected breach of integrity.
§ 4. Federal mediators and, where appropriate, experts who assist them, may associate with this investigation any staff members they consider useful. A staff member who is associated with the investigation has the right to be assisted by counsel.
Art. 11. § 1^er. The warrant of investigation into the suspected breach of integrity mentions at least:
1° the description of the suspected breach of integrity that gives rise to the investigation;
2° the name of the federal administrative authority where the investigation will be conducted;
3° the name, linguistic role and contact information of federal mediators and, where appropriate, experts who assist them in the execution of the investigation;
4° the questions to which the investigation must answer;
5° the date of completion of the investigation: the investigation must be closed no later than twenty weeks after the date of receipt referred to in Article 6, § 4, paragraph 1^er. The expected duration may be extended, for reasons, up to four weeks.
§ 2. Any changes to the investigative mandate are documented in writing in an addendum by federal mediators.
§ 3. The warrant of investigation and the addendum referred to in § 2 are signed and dated by the federal mediators and, if applicable, by the experts who assist them in the execution of the investigation.
Section 2. - Written notification of the investigation
Art. 12. Staff members who are associated with the investigation receive written notification from federal mediators of the investigation.
The notification shall at least mention:
1° the description of the suspected breach of integrity that gives rise to the investigation;
2° the possibility that the investigation may be extended to the facts and circumstances that are revealed during the investigation and that may be useful in defining the extent, nature and severity of the suspected breach of integrity;
3° the right of the staff member involved in the investigation to be assisted by counsel;
4° the name of the federal administrative authority where the investigation will be conducted;
5° the name, language role and contact information of the federal mediators and, where appropriate, experts who assist them in the execution of the investigation.
The notification is not an application where the interest of the investigation requires it. The use of this provision is based on the written report of the investigation.
Section 3. - The individual statement and the written report
Art. 13. § 1^er. Federal mediators and, where appropriate, experts who assist them in the execution of the investigation:
1° ensure that personnel involved in the investigation can make their statements freely;
2° collect the individual statement of staff members who are associated with the investigation to collect objective information;
3° prepare a written report of the statement of staff members associated with the investigation.
§ 2. Staff members who are associated with the investigation provide federal mediators and, where appropriate, experts who assist them in the conduct of the investigation all relevant and informative information available to them in the course of the investigation.
§ 3. The written report referred to in § 1^er, 3°, is handed over to staff members who are associated with the investigation so that they can add their remarks.
§ 4. The written report referred to in § 1^er, 3°, and completed in accordance with § 3, shall bear the name and signature dated of the federal mediators and, if any, of the experts who assist them in the execution of the investigation, as well as of the staff members who are associated with the investigation and, if any, of the advice that assists them.
Each page of the report is numbered.
If a staff member associated with the investigation or, where appropriate, his or her counsel refuses to sign the report, that refusal is mentioned.
Section 4. - The completed written report
Art. 14. § 1^er. Within two weeks of the closing date of the investigation, the federal mediators complete this report with their views on the merits, their appreciation and the measures they recommend.
§ 2. If federal mediators consider that the completed written report of the investigation referred to in § 1^er, contains sufficient evidence to conclude that the suspected breach of integrity did not take place, they definitively close the investigation.
Federal mediators communicate the decision:
1° to the highest manager of the federal administrative authority where the suspected breach of integrity occurred;
2° to personnel involved in the investigation;
3° to the staff member who denounced the suspected breach of integrity.
§ 3. If federal mediators consider that the completed written report of the investigation referred to in § 1^er contains sufficient elements to conclude:
1° that the suspected breach of integrity has actually taken place, but that they do not have sufficient evidence to conclude that they have acquired the knowledge of a crime or offence, they shall submit the written report to the highest management officer of the federal administrative authority where the suspected breach of integrity occurred;
2° that the suspected breach of integrity has actually taken place and that there are sufficient clues suggesting that the highest reporting officer is involved in the suspected breach of integrity, they make the written report completed, for appropriate action, to the Minister at the disposal of the federal administrative authority or the management committee of the public institution concerned with social security where the suspected breach of integrity occurred.
Federal mediators communicate the decision:
1° to staff members who were involved in the investigation;
2° to the staff member who denounced the suspected breach of integrity.
§ 4. When a person of integrity trust or a federal mediator considers, in the course of the denunciation procedure, that he has sufficient evidence to conclude that he has acquired knowledge of a crime or offence:
1° Article 29 of the Code of Criminal Investigation shall apply without delay with respect to the person of confidence in integrity. The latter shall inform in writing the highest manager of the federal administrative authority where the crime or offence was committed. If it appears, however, sufficiently that the highest manager of the federal administrative authority in which the alleged crime or offence occurred is involved, the trusted person shall notify the Minister in writing of the crime or offence committed by the federal administrative authority or the management committee of the public institution concerned with social security, where the suspected crime or offence occurred;
2° Article 12 of the Act of 22 March 1995 establishing federal mediators shall apply without delay with respect to the federal mediator. When it appears to be sufficient that the highest reporting officer of the federal administrative authority in which the crime or offence was committed is involved in the crime or the suspected offence, the federal mediator shall inform the Minister in writing of the crime or offence committed by the federal administrative authority or the management committee of the public institution concerned with social security, where the crime or the suspected offence took place.
§ 5. The person of integrity trust or the federal mediator shall notify the statement resulting from the application of § 4, 1 and 2 to the staff member:
1° that acted in accordance with Article 8, § 1^er;
2° that, according to the trusted person or the federal mediator, is not involved in the crime or offence suspected of reporting.
CHAPTER 7. - Protection against a measure that has an adverse effect on working conditions or circumstances
Art. 15. § 1^er. Federal mediators protect the following persons against a measure that has a negative impact on the conditions or circumstances of work, as referred to in § 2, which arises from the denunciation, the person of integrity trust or the Central Contact Point, of a suspected breach of integrity:
1st staff member who denounced the suspected breach of integrity;
2° the staff member who is associated with the investigation, and
3° the consulting staff member who assists the staff member associated with the investigation.
§ 2. As a result of a detrimental effect on the conditions or circumstances of work that arises from the denunciation of a suspected breach of integrity, the following must be understood, inter alia:
1° dismissing a staff member, excluding the voluntary resignation;
2° expected to terminate or not extend a temporary appointment;
3° do not convert a temporary appointment for a trial period to a final appointment where it is feasible;
4° move or transfer a staff member or refuse an application in that direction;
5° take a measure of order;
6° take an inner measure;
7° take disciplinary action;
8° deprive a staff member of a salary increase;
9° deprive a staff member of promotional opportunities;
10° deprive a staff member of the facilities available to other employees;
11° refuse leave;
12° assign an unfavourable assessment.
§ 3. The period of protection takes place:
1° for the staff member who denounced the suspected breach of integrity, at the date of receipt referred to in Article 6, § 4, paragraph 1^er;
2° for the staff member and the consulting staff member who are associated with the investigation, the date on which the federal mediators and, where applicable, the experts associate them with the investigation of the alleged breach of integrity.
The King sets the duration of the period of protection. It is not less than two years from the closing of the completed written report or a final judicial conviction.
§ 4. Protection is not granted to a staff member who wishes to report a suspicious breach of integrity in a federal administrative authority, but who has not acted in accordance with Article 8.
§ 5. Protection granted to staff members who denounce the suspected breach of integrity in accordance with §§ 1^er2 and 3, adjourned on the closing date of the completed written report, as referred to in article 14, § 1^erif it contains sufficient elements to conclude:
1° that the staff member who denounced the suspected breach of integrity acted knowing that this denunciation was not sincere;
2° that the staff member who denounced the suspected breach of integrity is himself involved in the suspected breach denounced.
Protection granted in accordance with §§ 1^er2 and 3 to the staff member who is associated with the investigation is lifted at the closing date of the completed written report, as referred to in article 14, § 1^erif it contains sufficient elements to conclude:
1° that the staff member deliberately provided dishonest, non-compliant, and manifestly incomplete information to the investigators within the scope of his investigative mandate;
2° that the staff member was himself involved in the suspected breach denounced.
§ 6. Federal mediators notify the staff member in writing of the decision to grant, not grant or lift the protection.
§ 7. The review of a claim is suspended where the facts are subject to judicial review or an administrative appeal. The administrative authority shall notify the federal mediators of the appeal.
In this case, federal mediators inform the claimant without delay of the suspension of the review of his claim.
The introduction and examination of a claim shall not suspend or interrupt the time limits of judicial or administrative appeals.
§ 8. Protection referred to in § 1^er is granted by federal mediators.
Art. 16. § 1^er. A staff member who claims to be subjected to or threatened to undergo a measure referred to in Article 15, § 2, may file a substantiated complaint with federal mediators during the period referred to in Article 15.
§ 2. If, during the period of protection, the measures referred to in Article 15, §2, are taken against a member of the protected personnel, the burden of proof that no action or threat of action is or has been taken or formulated is the responsibility of the federal administrative authority where it is assumed that measures or threats of action are or have been taken or formulated.
§ 3. The federal mediators in writing ask the highest manager of the federal administrative authority referred to in § 2, to prove that no action and/or any threat of action referred to in Article 15, § 2, has been taken or formulated, during the period of protection, against the member of the protected personnel.
§ 4. The supervisor referred to in § 3 shall have four weeks, from the date of receipt of the written request referred to in § 3, to make available to the federal mediators a written report that undeniably establishes whether or not the measures or threats of measures referred to in Article 15, § 2, have been taken or formulated against the member of the protected personnel.
§ 5. If the written report referred to in § 4:
1° that measures or threats of measures referred to in Article 15, § 2, have been taken or formulated against the staff member protected by federal mediators, Article 12, paragraph 2, of the Act of 22 March 1995 establishing federal mediators is applicable - without prejudice to the possible application of other legal sanctions - and the staff member of the federal administrative authority who has taken or threatened to take a measure referred to in §
2° that no measure and/or threat of measure referred to in Article 15, § 2, has been taken or formulated against the staff member protected by the federal mediators and that the latter has consciously resorted to § 1^er through a dishonest statement and not in conformity with reality, Article 12, paragraph 2, of the Act of 22 March 1995 establishing federal mediators is applicable - without prejudice to the possible application of other legal sanctions - and the staff member is subject to disciplinary proceedings.
CHAPTER 8. - Penalties applicable in cases of abusive denunciation
Art. 17. Without prejudice to the possible application of other penalties provided for by law, section 12, paragraph 2, of the Act of 22 March 1995 establishing federal mediators is applicable and a member of the staff of the federal administrative authority is subject to disciplinary proceedings if it is undeniably clear from the completed written report referred to in article 14, § 1^erthat:
1° the staff member deliberately denounced the suspected breach of the distorted integrity and not in conformity with reality;
2° the staff member associated with the investigation has deliberately provided false, non-compliant or incomplete information to federal mediators and experts who assist them in the investigation;
3° the staff member deliberately acted or made decisions for the sole purpose of intruding, complicating and/or closing the investigation or inducing a person to act in such a way.
CHAPTER 9. - Amendments
Section 1^re. - Amendment of the Code of Criminal Investigation
Art. 18. Section 29 of the Code of Criminal Investigation, last amended by the Act of 23 March 1999, is supplemented by a paragraph written as follows:
"A public servant who, on the basis of the Act of September 15, 2013 on the denunciation of a suspected breach of integrity in a federal administrative authority by a member of his or her staff, uses the denunciation system, is exempt from the obligation referred to in paragraph 1^er. »
Section 2. - Amendments to the Act of 22 March 1995 establishing federal mediators
Art. 19. Article 1^erParagraph 1^er, of the Act of 22 March 1995 establishing federal mediators is supplemented by a 4° written as follows:
"4° to examine the denunciations of the alleged breaches of integrity in accordance with the law of the... relating to the denunciation of a suspected breach of integrity in a federal administrative authority by a member of his staff. »
Art. 20. Article 15, paragraph 1^erthe Act of 22 March 1995 establishing federal mediators, as amended by the Act of 5 February 2001, is supplemented by the following sentence:
"These reports also contain recommendations made by federal mediators on the enforcement of the Act of September 15, 2013 on the denunciation of a suspected breach of integrity in a federal administrative authority by a member of his staff, to adapt and improve the system of denunciation of a suspected breach of integrity. »
CHAPTER 10. - Entry into force
Art. 21. This Act comes into force six months after its publication to the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 15 September 2013.
PHILIPPE
By the King:
Minister of Finance and Sustainable Development, Public Service
K. GEENS
The Secretary of State for the Public Service and the Modernization of Public Services,
H. BOGAERT
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
___
Note
(1) Session 2012-2013.
Senate
Documents. - Bill by Mr. Beke et al., 5-217 - No. 1. - Amendments, 5-217 - No. 2. - Opinion of the State Council, 5-217 - No. 3. - Amendments, 5-217 - No. 4. - Report, 5-217 - Number 5. - Text adopted by the Commission, 5-217 - No. 6. - Amendments, 5-217 - No. 7. - Report, 5-217 - No. 8. - Text adopted by the commission, 5-217 - No. 9. - Text adopted in plenary and transmitted to the House of Representatives, 5-217 - No. 10.
Annales of the Senate. - 2 May 2013.
House of Representatives
Documents. - Project transmitted by the Senate, 53-2802 - No. 1. - Report, 53-2802 - No. 2. - Text corrected by commission,53-2802 - No. 3. - Text adopted in plenary and subject to Royal Assent, 53-2802 - No. 4.
Full report. - 16-17 July 2013.