What is the EU Whistleblowing Directive and why is it relevant to the Netherlands?
The EU Whistleblowing Directive seeks to bring an end to a confusing patchwork of whistleblower protection legislation across the EU through the introduction of a universal and comprehensive European standard. December 2021 was the deadline for national governments to transpose the Directive and the vast majority of EU member states, including the Netherlands, missed it.
Under the new measures, all private and public sector employers with 250 employees or more are required to implement a whistleblowing system while smaller organisations with between 50 and 249 employees have been given extra time to complete the process.
The situation in the Netherlands before the EU Whistleblowing Directive
After 10 years of discussion, the Wet Huis voor klokkenluiders or Dutch Whistleblowers’ Authority was established in 2016 in order to provide protection for those reporting and investigating abuses and wrongdoing. It determined current and former employees who acted in good faith by reporting misconduct could not be disadvantaged in their position.
In terms of the type of misconduct reported, it took into account any suspicion of abuse impacting public interest. Due to the law, the EU Commission named the Netherlands one of only nine member states that already had comprehensive whistleblower protection measures in place prior to the EU Whistleblowing Directive. Nevertheless, the Dutch Whistleblowers’ Authority did have some weaknesses and changes were required to comply with the new EU measures.
Shortcomings of the existing legislation
In contrast to the EU’s positive statement regarding whistleblower protection in the Netherlands, the OECD labelled the whistleblowing law “groundbreaking legislation that nevertheless fails to provide comprehensive protection”, adding that “it is failing to meet expectations due to its limited mandate”.
Points of criticism included a lack of whistleblower retaliation cases referred to civil courts for resolution, an inability for the Authority to order employers to reinstate or compensate victimised employees and a lack of penalties for employers who punished whistleblowers. In addition, employees who suffered the consequences of speaking up had to seek remedies in court, where they had to attempt to prove the action was taken against them for blowing the whistle.
One prominent Dutch case involves whistleblower Frits Veerman who reported his suspicions of nuclear espionage in the mid-1970s, a move that cost him his job and arguably led to Pakistan developing nuclear weapons. Despite an investigation and Veerman’s death in 2021, the case about his treatment still has not reached a conclusion while key questions remain unanswered.
Entry into force
As mentioned above, the Wet Huis voor klokkenluiders was amended to transpose the Directive into Dutch law. Consequently, it was renamed the Wet Bescherming Klokkenluiders or Whistleblower Protection Act. While the new measures came into force on 18 February 2023, some elements of the legislation will take longer to come into effect.
These include the obligation for employers to also process anonymous reports and the enforcement of sanctions by the Whistleblowers Authority. In the case of the latter, the components for enforcement must be identified and this requires new regulations.
The Netherlands and the road to transposition (so far)
- July 2020: Dutch government launched public consultation on a draft law to transpose the EU Whistleblowing Directive
September 2020: Responses to public consultation on draft law published
December 2020: Draft transposition bill is submitted to the Advisory Division of the Council of State in the Netherlands for advice and processing
June 2021: Bill is submitted to the House of Representatives and a procedural meeting of the Home Affairs Committee takes place
October: Draft law is examined in parliament
January 2022: Home Affairs Committee of the House of Representatives states its preference to combine the Whistleblower Protection Bill with an evaluation of the current legislation
April 2022: Proposal to strengthen bill submitted to parliament
December 2022: House of Representatives passes the bill
January 2023: Bill gains Senate approval and the Directive is transposed
The key differences between the old and new legislation
- In line with the EU Directive, the new Dutch Whistleblower Protection Act is broadly aimed at extending protection for whistleblowers, ensuring those reporting wrongdoing are protected, shifting the burden of proof to employers, expanding the definition of those protected and creating stricter internal reporting procedures. An overview of the key differences to the previous Dutch whistleblower legislation can be seen here:
- Expanded definition of reporters (including interns, trainees, former employees, etc.)
- Wider type of breaches can be reported (risk of EU breaches or an act where public interest is at stake)
- Reporting must be possible both orally and in writing
- Whistleblower has right to remain anonymous
- Reports have to be treated confidentially
- Possibility to decide if reporting occurs internally or externally as well as to the public if the necessary conditions are in place
- Burden of proof is shifted – the employer must prove that the whistleblower’s grievances are unrelated to his or her complaint
- New deadlines – whistleblowers must receive confirmation of receipt of their report within 7 days while a substantial response from the organisation must follow within 3 months.
- Quality communication. The whistleblower can turn to the authorities or press if he or she can prove that the concern is not being addressed adequately internally
- Protection and support measures will protect the whistleblower against forms of retaliation such as dismissal, suspension, bullying, intimidation or harassment
Stronger reporting channels
Entities with at least 50 employees have been required to have an internal procedure for reporting wrongdoing since 01 July 2016. While individuals speaking out received protection under the Netherlands’ previous whistleblowing law, the new version broadens protective measures. The definition of “wrongdoing” or “misstand”, has been expanded while the requirements for internal reporting have been strengthened.
It must now be possible for whistleblowers to submit reports both in writing or orally (by telephone, voice messaging or face-to-face contact), while they should be made aware of how to report misconduct externally and anonymously. An anonymous report must be made through a confidential intermediary such as a lawyer. Employers will have to document reports of suspected abuses in a special register established for that purpose.
Previously, whistleblowers had to report internally at first and this is no longer a requirement, allowing an individual to file a complaint outside the organisation to a “competent external authority”. The list of competent authorities is as follows: the Netherlands Authority for the Financial Markets, the Netherlands Authority for Consumers and Markets, The Dutch Central Bank, the Netherlands Data Protection Authority, the House for Whistleblowers, the Dutch Healthcare Authority and the Inspectorate for Health and Youth Care.
While organisations with more than 250 employees were obliged to amend their whistleblowing frameworks upon the new law’s entry into force, private sector entities with between 50 and 249 employees were given an extended deadline until 17 December 2023.
Final amendments and legal certainty
During its long legislative journey, the Whistleblower Protection Act experienced six amendments and some aspects of the law are still attracting criticism. It states that a violation of EU legislation is only regarded as a whistleblower report if the public interest is at stake and Transparency International and various political groups have called for this criterion to be removed. Amendments to establish a fund to support whistleblowers fell short, though a motion for such a proposal has now been adopted.
Despite some shortcomings, the Wet Bescherming Klokkenluiders is broadly in line with the EU Whistleblowing Directive and it represents a considerable improvement over the previous Wet Huis voor klokkenluiders. Stronger reporting channels and improved protection mechanisms have created legal certainty for whistleblowers in the Netherlands while bringing the country in line with the latest EU-wide protection standards.
Whistleblowing Laws in the Netherlands
On 18 February 2023, the Dutch whistleblowing law partially entered into force. Learn in our free guide about the legal requirements and how your company can comply.
