NEWS – “without comment
REMINDER UPDATE:
Belgium’s new Private Investigation Act (“PIA”) was published in the Official Gazette on 6 December 2024 (fr and nl), with most of its provisions having entered into force on 16 December 2024. The PIA replaces the 1991 Belgian Act on Private Detectives with the aim of modernising the applicable legal framework in light of new investigation methods and the application of the GDPR. With its broader scope of application – this legislation is now also applicable to internal investigations – and the significant additional requirements it imposes, the PIA will undoubtedly impact many businesses operating in Belgium.
Is my company affected?
Many companies operating in Belgium will be affected by this new legislation which not only applies to private investigations carried out by traditional external investigators, but also to internal investigations conducted in Belgium. The PIA applies to internal investigation services, namely a service organised by a natural or legal person for its own needs in order to conduct private investigation activities in a structural manner, which means that the private investigation activities must be part of the tasks of at least one associate. This includes investigation activities carried out within the same company group.
Private investigation activities are defined as activities performed by a natural person at the request of a principal and consisting in the collection and processing of information concerning natural or legal persons or regarding precise circumstances of facts committed by these persons. The aim of private investigations is to provide the information obtained to the principal in order to preserve its interests in the context of a potential or effective dispute, or of researching missing persons or lost/stolen goods.
Certain activities are excluded from the scope of the PIA, for example:
- Professional activities of notaries, lawyers, bailiffs, journalists, auditors and statutory auditors;
- Activities and professions seeking specifically to identify, analyse and process cybersecurity incidents;
- Activities conducted on behalf of the principal in the performance of legal obligations, such as in the case of investigations in the framework of whistleblowing reports or complaints concerning psychosocial risks at work (performed by the health and safety prevention advisor). However, when the investigation results are used outside the mere execution of legal obligations – which appears to be a difficult line to draw in practice – the PIA is applicable.
What to pay attention to when carrying out internal investigations: main obligations
The PIA imposes a number of onerous obligations to be complied with when conducting internal investigations, most importantly:
- License: private investigation companies and internal investigation services must obtain a prior authorisation or license from the Ministry of Interior to lawfully conduct private investigations in Belgium. The license is granted for a renewable period of five years.
- This requires to have a criminal record clean from specific criminal offences, undergo specific training and be a national of and have one’s main residence in the EEA or Switzerland (or in the UK for private investigators).
Article by: Baker McKenzie – Elisabeth Dehareng and Caroline Serbanescu
Read Full Article at: https://www.lexology.com/library/detail.aspx?g=5c3f1a93-7ce7-4600-a724-229637ba5fc3
Posted by: Ian (D. Withers)
www.WAPI.org