Netherlands: Implementation of the Whistleblower Directive
Your company might need its whistleblowing policy updated and implemented before 17 December 2021. Why? Before 17 December 2021, the new EU Whistleblower Directive ('the Directive') needs to be implemented in National Law throughout all EU Member States. Marc Elshof and Anouschka van de Graaf, Partner and Senior Associate respectively at Dentons, discuss this process in the Dutch context.
Whistleblowers and facilitators
With the Directive, the EU wishes to provide harmonised minimum protection across all Member States for whistleblowers who report violations of EU law. A whistleblower is someone working for the company who comes forward and shares his or her knowledge on any such violations which he or she thinks are happening within the organisation. Whistleblowers speak up, and although their actions serve the public interest, these individuals too often experience harassment, discrimination, and retaliation as a result of their actions.
In order for a whistleblower to be protected under the Directive, they must have reasonable grounds to believe that the reported information is true. Reporting (based on) inaccurate information can of course be an honest mistake. In that case the protection offered by the Directive will not be lost.
The Directive also applies to 'facilitators', defined as third parties who are connected with the reporting persons and who could suffer retaliation in a work-related context such as colleagues or relatives of the whistleblowers but also legal entities that the whistleblower owns.
Private and public organisations
Under the Directive, all legal private and public organisations with 50 or more workers must make sure to have internal reporting channels in place. A 'worker' in the EU includes workers in a wider range of employment relationships than only employees, such as part-timers, trainees, fixed-term contract workers, and interns.
The minimum size of 50 workers does not apply to regulated entities in the financial services sector or entities that are likely to be exposed to terrorist financing or money laundering. These entities are required to have the reporting channels in place regardless of their size.
Current protection of whistleblowers in the EU
Some EU Member States have already, to a greater or lesser extent, regulated the protection of whistleblowers nationally. These Member States will have to amend their national legislation based on the Directive, where necessary. The Directive provides a minimum level of protection for whistleblowers. Member States are allowed to extend the protection that is required by the Directive.
Implementation in the Netherlands
The Whistleblowers Act
The Netherlands is one of the EU Member states that already regulated protection for whistleblowers nationally. This protection is laid down in the Dutch House for Whistleblowers Act ('the Whistleblowers Act'). The Whistleblowers Act came into effect on 1 July 2016 and established the House for Whistleblowers (i.e. the Dutch Whistleblowers Authority). The purpose of the Whistleblowers Act is to legally protect whistleblowers and to contribute to solving societal issues. Whistleblowers, in the sense of the Whistleblowing Act, are workers who report malpractices within the organisation. Malpractices are defined as 'violations of legislation that cause the societal interest to be at stake'.
The Whistleblowers Act applies to all organisations within the Netherlands with more than 50 workers. To comply with the Whistleblowers Act, these organisations need to have an internal procedure in place for reporting malpractices within the organisation and it prohibits the disadvantaging of workers as a result of reporting a wrongdoing.
A whistleblower in the Netherlands currently first has to report malpractices within the organisation by following the internal reporting procedure. Only after following the internal reporting procedure, a whistleblower can approach the House for Whistleblowers to investigate the (alleged) malpractice(s).
The House for Whistleblowers has the following tasks:
- advising whistleblowers who want to report malpractices and informs them about their legal protection;
- investigate malpractices; and
- investigate treatment of workers after reporting malpractices.
Draft bill to amend the Whistleblowers Act
The Directive will be implemented in the Netherlands by means of the draft bill to amend the Whistleblowers Act ('the Bill') with accompanying draft explanatory memorandum ('the Memorandum'). The Bill aims to implement the Directive but also provides for a number of other amendments to the Whistleblowers Act.
The consultation procedure with regard to the Bill and the Memorandum began on 30 July 2020. This consultation concluded on 10 September 2020. The Bill was submitted to the Dutch House of Representatives on 1 June 2021. After approval of the House of Representatives, the Bill will be submitted to the Senate for approval. The intention is that the Bill will enter into effect as from December 2021 and then replaces the current Whistleblowers Act.
Most relevant changes to the Whistleblowers Act
Inclusion of violations of EU Law
In addition to the current protection under the Whistleblowing Act for reporting misconduct, the Bill also explicitly provides for protection of whistleblowers when reporting violations of EU law.
Extension of the group of people that receives support and protection
The Directive includes a broader scope of the group of people that receive support and legal protection in case of reporting misconduct than currently included in the Whistleblowers Act. By means of the Bill, this group will be extended to also include volunteers, interns, job applicants, shareholders, directors, subcontractors or suppliers, self-employed persons (ZZP-ers), confidential advisors, trade union representatives, colleagues or family members who are in a work-related relationship with the reporting person’s employer, client, or service recipient and those who assist a reporting person.
Extension of internal reporting requirements
Implementation of the Directive leads to extension of the requirements for internal reporting of misconduct and violation of (EU and national) law. Some examples of the added requirements are:
- whistleblowers must receive acknowledgement of receipt of their report within seven days;
- within three months specific information must be provided to whistleblowers regarding the next steps to be taken; and
- when the report concerns a violation of EU law, the company is required to keep a record of the report.
The Directive requires EU Member States to designate competent authorities for the establishment of external reporting channels. The Bill designates the following competent authorities:
- the Dutch Authority for Consumers and Markets;
- the Dutch Authority for the Financial Markets;
- the Dutch data protection authority;
- the Dutch Central Bank;
- the House for Whistleblowers;
- the Inspectorate for Health and Youth Care; and
- the Dutch Healthcare Authority.
Another change in light of external reporting is that in the current Whistleblowers Act there is an obligation to first use the internal reporting channel. Based on the Directive, the Bill enables reporting persons to directly turn to an external reporting channel.
Additional protection and support measures
Based on the Directive, the Bill implements the following additional protection and support measures for whistleblowers:
- a whistleblower may not be made the object of a detrimental action after the handling of his or her report or publication of the report;
- the burden of proof with regard to a detrimental action no longer lies with the whistleblower but with the employer (the employer must demonstrate that the detrimental action is not a result of the report);
- whistleblowers are protected against civil liability resulting from the report or public disclosure; and
- the competent authorities must provide a reporting person with evidence and documents to enable them to prove that a report was made in proceedings for legal protection.
As described above, the implementation of the Directive in The Netherlands will lead to a considerable amount of changes to the current Whistleblowers Act. The most noticeable change is the improvement of the legal position, support, and protection of whistleblowers and the extension of the group of people that will receive support and protection under the Whistleblowing Act. However, for organisations, the most important changes at this moment in time, are the changes that need to be anticipated in advance, such as the extension of the requirements for internal reporting channels that need to be operationally implemented before December 2021.