A New Era for Internal Investigations in Belgium: How the Private Investigation Act Will Reshape Your Approach

THE ACT OF 8 MAY 2024 WILL CHANGE THE WAY YOU'RE USED TO DOING INTERNAL INVESTIGATIONS IN BELGIUM - HERE'S WHAT YOU NEED TO KNOW

On 8 May 2024, the Belgian Parliament adopted the Private Investigation Act. The Act introduces a detailed legal framework governing any form of private investigation. It is also applicable to corporate internal investigations. Non-compliance with the often strict requirements of the act can result in administrative fines, but also in the nullity of investigative acts. This means, a court will not consider certain evidence collected in disregard of the new legal rules.

1. Is this new act already in force?

No. It will take effect 10 days after publication in the Belgian State Gazette. Publication is expected to take place soon, but a precise date is not yet known.

2. What investigations are covered?

The law applies generally to any form of "private investigation". This is broadly defined as the gathering of intelligence on individuals for a principal, in order to safeguard that principal’s interests in a (potential) conflict.  A classic corporate "internal investigation", where a company itself investigates fraud or irregularities by its own employees, falls under the scope of the act.

3. What investigations are not covered?

The investigation must be done in the context of a conflict situation. Investigating a job applicant, or a potential business partner is normally not covered. Although the act is not clear on this point, investigations whereby by a company exclusively analyses readily available documents belonging to the company itself do not appear to be in scope either.

Certain professions and activities are expressly excluded from the scope of the new act. This is the case for amongst others external counsel (advocaat / avocat) and court bailiffs. They can therefore conduct investigations without having to comply with the (restrictive) provisions of this law. The law also provides exceptions for investigations in the context of AML compliance, prevention advisers or environmental coordinators. Investigations done further to a whistleblower complaint also appear to be excluded.

4. Employers to adopt a new policy

Employers who might conduct internal investigations into employees are required to adopt a policy setting that transparently sets out the possibility of and conditions under which internal investigations can be done. Internal investigations done without such regulations are null and void. Employers will have a transition period of two years as from the entry into force of the law to adopt this policy.

5. Private investigation requires a licence. My company occasionally investigates incidents involving one of its employees. Do we now need to apply for a licence?

One of the key principles of the new act, is that private investigation may only be conducted by persons who have a licence, issued by the Ministry of Interior Affairs. Private investigation done without a licence is null and void.

However, the law provides an exception to this licensing requirement for investigations done by “members of an HR department” into incidents involving “employees of the same employer”. Note that the scope of this exception is limited:

• It applies only to members of the company’s HR department. This means members of another department such as legal, IT or accounting, ... cannot benefit from the exception. This is unfortunate, because in practice, these other departments often play a critical role in internal investigations. Although the law does not expressly provide for it, it does seem possible to involve members of another department in an investigation, albeit in an exclusively supporting role. The actual investigation should be left to members of HR, who benefit from the exception to the licensing requirement.

• The exception to the licensing requirement only applies to investigations into employees of the same employer. Investigations into third parties or into non-employees are not covered (e.g. directors providing services on a self-employed basis or through a management company, suppliers or customers).

An investigation that does not fall under the exception, should be left to someone who has a private investigator’s license, or to a professional who is not subject to the requirements of the Act, such as external counsel (advocaat / avocat).

6. We are conducting an internal investigation. What requirements should we be aware of?

The law introduces numerous new rules on how internal investigations should be conducted, including the following:

• Interviews done in the context of an internal investigation are now subject to strict requirements. The interviewee must be read a sort of "letter of rights" at the start of the interview, informing him that he has a right to be assisted by a person of his/her choice, and that he is not obligated to answer questions. A written report of the interview has to be prepared. The interviewee is entitled to a copy of this report.

• Certain other investigative acts, such as observations, are also explicitly regulated.

• Privacy of all involved parties is key. Investigations on certain subjects are expressly prohibited (including a person's health, political beliefs or trade union affiliation).

• When criminal offences are found in the context of an internal investigation, the private investigator is obligated to report this to the criminal authorities. The criminal authorities can order a suspension or cessation of the investigation, and have a right to demand the production of documents from the private investigation file.

• The act introduces broad record-keeping obligations. Internal investigations must be thoroughly documented. The start of an internal investigation must be recorded, and an investigation file must be kept that includes the names of all investigators, and all documents collected/created in the investigation (including investigators' notes).

7. Can criminal authorities demand the production of our own internal investigation file? What about legal privilege?

Internal investigation files – which companies will now mandatorily have to keep - will often contain highly sensitive information about the company itself and its employees. Is that information privileged? It appears not. The documents in the investigation file will normally have been prepared by a member of the HR (and not by an inhouse or external lawyer who has legal professional privilege or professional secrecy). Also, the investigation file will typically comprise mostly pre-existing documents or purely factual findings, but not documents holding legal advice. This means criminal authorities will be able to demand its production.

Companies are advised to consider the risks this new Act might entail before starting an investigation. When in doubt, it seems advisable to leave the investigation to an external lawyer who is not subject to the requirements of this new act, and who can maintain professional secrecy on any notes or documents prepared in the context of his / her investigation. The results of an external lawyer's investigation can be used in court if necessary. In many situations, the involvement of an outside lawyer – an unbiased, independent professional bound by ethical standards – will reinforce the evidentiary value of the investigation.