The Belgian Private Investigations Act: a game changer for internal investigations

On 6 December 2024, the eagerly awaited Private Investigations Act (the “Act”), adopted by parliament in May 2024, was published in the Belgian State Gazette. The Act constitutes a major overhaul of the existing legal framework governing private investigations (also known as internal or corporate investigations) and promises to be a game changer for businesses and private investigators alike. In this post, we provide a first high-level analysis of the Act.

1. Background and key objectives

The Act repeals and replaces the 1991 Private Detectives Act. The legislator deemed the latter no longer fit for purpose considering, among other things, evolutions in data protection and privacy regulations, new investigation techniques and the expansion of the private investigation profession to fraud auditors, forensic accountants and various other professionals.

The primary objective of the Act is to restore the balance in terms of investigatory powers and techniques between public investigations (i.e. criminal investigations conducted by the police) and private investigations. The legislator also seeks to enhance privacy and other fundamental rights during private investigations. More generally, the Act aims to strike a balance between a company’s legitimate interest to conduct an internal investigation (e.g. to investigate fraud or other wrongful behaviour within the company) and the rights of individuals that are subject of the investigation.

2. Scope

The Act, which is of public order, has a broad scope of application. As reported in a previous post, it applies to private investigations conducted by external investigators and in-house investigation services. Private investigations involve a private investigator who collects and processes information about individuals, such as employees, or legal entities. This information pertains to facts allegedly committed by them. The private investigator provides this information to a principal, such as an employer, to safeguard the principal’s interests in cases of actual or potential conflicts, such as a dismissal dispute. Additionally, private investigations can aim to trace missing persons or locate lost or stolen goods.

Notably, activities conducted by certain professionals such as lawyers, journalists or company auditors are not considered as private investigations and are therefore excluded from the Act. Investigations carried out pursuant to whistleblowing regulations are also exempt.

The Act furthermore exempts HR teams investigating incidents in relation to employees from the obligation to be licensed (see below); however, all other provisions of the Act remain applicable.

3. Key features

Licensing: external investigators and in-house investigation services (except for HR teams) must be licensed by the relevant authorities to conduct private investigation activities.

Detailed rules and procedures: the Act lays down detailed rules and procedures for conducting private investigations, including requirements on investigation reports, interviews and notification duties to the criminal authorities.

Policy: employers are required to have a written policy outlining the authorisation and conditions for conducting private investigations (this can be included in the company’s work regulations or in a collective labour agreement).

Legal assistance: interviewees have the right to be assisted by a person of their choice (e.g. a lawyer or trade union representative) during interviews conducted as part of a private investigation.

Sanctions: non-compliance with the Act may give rise to administrative fines, without prejudice to criminal sanctions (e.g. for hacking). Importantly, the Act also contains several provisions that are subject to a nullity sanction, meaning that evidence obtained in breach of those provisions will have to be excluded by a judge (e.g. in cases where the private investigator was not licensed or the employer failed to have a written private investigation policy).

4. Timing and next steps

The Act enters into force within 10 days of publication, i.e. on 16 December 2024. Most of its provisions will apply as from then. The Act, however, contains a number of transitory provisions. For example, employers will have two years to adopt a written private investigation policy. In addition, external investigators or in-house services already carrying out private investigations will, subject to compliance with certain conditions, have six months to apply for a licence; in the meantime, they can continue their operations.

The Act will no doubt have a substantial impact on private investigations going forward. Businesses are therefore well advised to carefully consider the impact of the Act on their internal structures, operations and policies to ensure compliance and effectiveness of future investigations.

If you have any questions, please do not hesitate to contact our experts who will be happy to guide you through the intricacies of the Act and its implications for your business.