In December 2024, the new Private Investigations Act came into force. The Act replaced the Private Detectives Act of 1991 and was long overdue, considering how much has changed in the world of private investigations. The 1991 law focused on detectives as sole practitioners, think Columbo or Magnum P.I., a world of uncertain ethics, periodic violence and grubby raincoats, most of which no longer exists outside the small screen. The new Act aims to modernise the applicable legal framework in light of new investigation methods and bring it into line with the General Data Protection Regulation (GDPR), though sadly not to address the traditional private detective issues of implausible dialogue and unhappy dress choices.

The Act imposes a number of obligations on employers instructing investigations on their employees, and we will discuss these changes at length in future blogs, but there is a more pressing issue we need to deal with first, and that regards your internal investigations service. The Act extends its scope from solo private detectives to all types of investigations companies but more importantly, also to internal investigations services. An internal investigations service is defined by the Act as ‘any service organised by a natural or legal person for its own purposes for the systematic performance of private investigation activities’. This definition is very wide and has prompted the legislator to exclude a number of roles and functions, such as lawyers, bailiffs and auditors.

The legislator has taken into account that in practice, internal services are often organised at group level and has therefore provided that investigation activities still qualify as internal when they are performed for the benefit of companies in the same group structure. What the legislator has seemingly not considered, however, is that international groups will often have an investigations team in one location, which is not necessarily Belgium, that will conduct all investigations for the group, including those concerning employees located in Belgium. This means that the Belgian legislator has probably also not fully realised that the registration obligation imposed by the Act may thus also extend to these internal investigations services located outside of Belgium, if their remit extends to this country.

The Act provides an exception for members of the HR team “who carry out private investigation activities on behalf of their own employer within the framework of incident investigations [not defined] involving employees of that employer”. The HR team will not be considered to perform the activities of an internal investigations service, so the registration obligation will not apply to them. The criterion of distinction would be the focus of the team: is it day-to-day HR activities, with an exceptional side activity of investigative work, or is investigation work the main focus for the team?

So what does this registration obligation entail? Internal investigations services must obtain a prior authorisation or licence from the Ministry of Interior to lawfully conduct private investigations in Belgium. The licence is granted for a renewable period of five years. It will only be awarded if the members of the team have a clean criminal record (minus some minor offences), they have undergone specific training and are Belgian nationals or have their main residence in the EEA or Switzerland. This would seem to suggest the end of investigations being carried out more or less remotely by the US parents of local subsidiaries, though it is unclear at this stage just how much (substantial) advisory input into the investigation process and/or decisions there can still be from abroad so long as the team is fronted by someone satisfying the above conditions. The members of the team should also have a certain “desired profile”, meaning that they will honour individuals’ fundamental rights, be loyal and discrete, and not entertain suspicious relations with criminal organisations, etc.

The license is awarded by the Ministry of Interior, which may or should in some cases seek the prior advice of the public prosecutor.

If an internal investigations service was already validly performing private investigation activities on the date of entry into force of the Act, 16 December 2024, they may continue to perform such services, but they will need to make a request to obtain a licence by 16 June 2025. The members of these teams will have 18 months after their company obtained a license to undergo the required training and obtain a licence card. The specific training requirements are in fact still to be defined by Royal Decree.