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Netherlands: Ministry of Interior issues answers on amendments to Whistleblower Protection Act

The Ministry of the Interior and Kingdom Relations issued, on 1 September 2022, answers to questions from the House of Representatives on the amended bill for a Whistleblowing Protection Act ('the Bill') implementing the Directive on the Protection of Persons who Report Breaches of Union Law (Directive (EU) 2019/1937) ('the Whistleblowing Directive'). In particular, the Ministry of the Interior highlighted that the primary purpose of the Bill is to comply with obligations under the Whistleblowing Directive. Furthermore, the Ministry of Interior outlined that some Whistleblowing Directive provisions are already in direct effect, from 17 December 2021, though the EU law principle of 'conformity' must be used when interpreting such provisions. Specifically, the Ministry of Interior noted that national law must be interpreted to be in conformity with the Whistleblowing Directive.

In addition, the Ministry of Interior clarified the meaning of 'social interest' under the Bill, and that, in determining social importance, the first thing that matters is that the abuse must rise above an individual issue or personal conflict. Further, the Ministry of Interior detailed that there must be either a pattern or structural character, or an abuse of such a serious and extensive nature that it affects the public interest.

Moreover, the Ministry of Interior provided clarity to 'internal reporting', under Article 17(e)(a) of the Bill, to a competent authority, rather than internal disclosures; notably that during and after disclosure of a suspicion of wrongdoing, a reporter is protected if the same has reasonable grounds to believe that:

  • the reported information about the wrongdoing at the time of disclosure is accurate; and
  • based on the feedback from the competent authority, the investigation is not progressing sufficiently.

Finally, the Ministry of Interior provided that amendments have been made to Article 5(1)(a) of the Bill, that allows a confidential counsellor or lawyer on behalf of a reporter, to request an investigation into suspicion of wrongdoing to the investigation department of the Dutch Whistleblowers Authority ('HVK').

You can read the announcement here and the Ministry of Interior's answers here, both only available in Dutch.