Is the Netherlands ready for the EU Whistleblower Protection Directive?
In the Netherlands, whistleblower protection legislation (the "Whistleblower Act") has been effective since 1 July 2016. Relevant legislation provides for an obligation for employers that generally have at least 50 people working within their organisation in the Netherlands to draw up an internal procedure for reporting wrongdoing. The new EU Whistleblower Protection Directive (the "Directive"), will bring several changes to the existing legal framework.
Existing legal framework
Prior to the introduction, in 2016, of the general obligation to have an internal reporting procedure for companies employing 50 or more employees, similar obligations already existed on a sectoral level (e.g. for financial institutions and for civil servants, including police and military personnel) and for Dutch listed companies.
Pursuant to the current Whistleblower Act, the internal reporting procedure should address the following aspects:
- how the internal report will be handled;
- what constitutes wrongdoing*;
- the employees/officers to whom concerns about wrongdoing can be reported internally;
- confidentiality on the report if the employee so requests; and
- the possibility for the employee to consult with a confidential advisor in the event of a suspicion of wrongdoing.
(*) Under the Whistleblower Act, wrongdoing sees to situations in the workplace or at another company where the public interest is at stake (e.g. a breach of law, a threat to public health, safety or environment and/or a danger for the public service or a company).
In addition, staff (employees and other workers) will need to be provided with information about 1) the circumstances when a suspicion of wrongdoing outside the organisation can be reported, and 2) the employee's legal protection when reporting a suspicion of wrongdoing.
Following the evaluation of existing legislation, and in view of the need to transpose the new Directive into national law, draft legislation was published for public consultation during the period 31 July 2020 – 10 September 2020.
In the draft legislation, requirements from the new Directive will become part of the (revised) Dutch Whistleblower Act that will then also provide for the process to report breaches of (specified) Union law and the protection available to the reporter in such case. The draft legislation provides for (slightly) different regimes as regards, for example, procedural timeframes and requirements relating to dealing with the report internally, dependent on whether the report relates to a suspicion of wrongdoing (which is the topic of the current Whistleblower Act), or a breach of Union law (as protected under the Directive).
Relevant breaches of Union law include breaches of rules in the following areas: public procurement, financial services, prevention of money laundering, product safety and compliance, transport safety, protection of the environment, radiation protection, food and feed safety, public health, consumer protection, protection of privacy and personal data.
This may result in the need to have different internal reporting procedures existing next to each other.
In the coming months, the draft legislation will be transformed into the bill that is to be presented to Parliament. It remains to be seen if the responses received, as part of the public consultation, will result in changes to the draft legislation. To the extent that the Directive provides for further protection to the reporter of a breach of Union law, the Dutch legislator has proposed to also apply such further protection to reports already covered by the current Whistleblower Act.
If you are interested in Clifford Chance's response to the public consultation on the draft legislation you can access it here, on the Dutch Government's website. Alternatively, please feel free to contact us directly.