Art. 2 (2) - Extension of material scope beyond EU law
The scope of the protection is extended to (threat of) a breach of a (national) law and the internal rules of an employer, provided that the internal rules are sufficiently specific and have a legal basis. For both breaches of (national) law and internal rules there is an additional requirement that the public interest should be at stake. The public interest is at stake when the wrongdoing is more than just a personal conflict or individual matter; there has to be a pattern or structural character or the wrongdoing is sufficiently serious or bad so that the public interest is affected. Also, a danger to public health, the safety of persions, the deterioration of the environment or the proper functioning of a public service or an enterprise as a result of an improper act or omission, proviced that the public interest is at stake.
Art. 4 (1) - Extension of personal scope (protected person)
The scope has been extended to persons connected to the reporter (e.g. family membersbut also companies of relatives) or other organizations with which the reporter has a work-related connection, the advisers of the reporter, the independent person(s) who receive the report and the independent person(s) who follow up on the report.
Art. 6 (2) - Acceptance of anonymous reports
An amendment has been adopted that requires organizations to put in place an anonymous reporting channel and to appoint an independent person who receives the anonymous reports. This part of the legislation has however not entered into force yet. First some lower legislation needs to be drafted with more detailed requirements for anonymous reporting. Until then, there is no legal obligation to launch anonymous reporting channels, except for companies that are subject to the anti-money laundering and counter terrorist financing law. This requirement evolves from the AML/CFT law.
Art. 7 (2) - Encouraging internal reporting
There is no specific requirement in the draft Dutch law to encourage employees to report internally first.
Art. 8 (7) - Obligation for legal entities in the private sector with less than 50 workers
No, there is no such requirement in the national law. However, the European Directive mentions a number of Directives and Regulations where the minimum threshold of 50 workers does not apply.
Art. 8 (9) second subparagraph - Exemption for municipalities with fewer than 10.000 inhabitants / fewer than 50 workers / other entities with fewer than 50 workers
No, there is no such requirement in the national law.
Art. 8 (9) Third subparagraph - Shared internal reporting channels for municipalities
Such shared internal reporting channels between municipalities are allowed, in line with the EU Directive.
Art. 11 (1) - Authorities competent to receive external reports
The Dutch legislator has determined in the national law that reporters can also report externally to eight external authorities and that additional authorities may be nominated in additional legislation. Moreover, legal entities have to inform employees how they can report wrongdoing externally. The authorities are: 1. de Autoriteit Consument en Markt (Consumer and Competition Authority: https://www.acm.nl/en ) 2. de Autoriteit Financiële Markten (Financial Services Authority: https://www.afm.nl/en/sector) 3. de Autoriteit persoonsgegevens (Data Protection Authority: https://autoriteitpersoonsgegevens.nl/en) 4. De Nederlandsche Bank N.V. (Dutch Central Bank: https://www.dnb.nl/en/) 5. het Huis voor klokkenluiders (the House for Whistleblowers/Whistleblowers Authority: https://www.huisvoorklokkenluiders.nl/english) 6. de Inspectie gezondheidszorg en jeugd (Health and Youth Care Inspectorate: https://english.igj.nl/) 7. De Nederlandse Zorgautoriteit (Dutch Healthcare Authority: https://www.nza.nl/english) 8. de Autoriteit Nucleaire Veiligheid en stralingsbescherming (Authority for Nuclear Safety and Radiation Protection: https://english.autoriteitnvs.nl/) 9. Others as determined in additional legislation. So far no other authorities have been added to this list.
Art. 11 (3) first sentence - Competence of authorities to decide on the minority of external reports
Implicitly this is already included in the defintion of wrongdoing, as the public interest has to be at stake. It is also explicitly stated in Article 6 in respect of the investigation department of the House for Whistleblowers, that says that this department may also come to the conclusion that the public interest is not at stake or that the wrongdoing is not sufficiently comprehensive.
Art. 11 (4) first sentence - Competence of authorities to decide on closing procedures regarding repetitive external reports
Yes. The investigation department of the House for Whistleblowers may come to the conclusion that another report on the same wrongdoing is already being or has already been investigated or that a court has already ruled on the wrongdoing with no possibility of an appeal.
Art. 11 (5) - Competence of authorities to handle particular external reports with priority
Art. 20 (2) - Financial assistance and support measures for reporting persons
The Dutch government has started pilot projects for free legal aid, psycho-social and financial assistance for whistleblowers. The pilots will be evaluated. It is the intention of the current government that final legislation will be proposed in 2024 or 2025.
Art. 21 (1) first sentence - Protection measures against retaliation
There is a prohibition to retaliate against a person who submits a report of serious / a threat of serious wrongdoing. A person who faces retaliation may go to the House for Whistleblowers and ask them to investigate the case. But even if the House rules that retaliation took place, the reporter still has to go to a court and prosecute his/her (former) employer to get compensated. However, an amendment has been adopted by parliament that enables the House for Whistleblowers to impose fines if retalation against whistleblowers takes place or if the whistleblower procedure does not meet the legal requirements. The House may also force an employer to reverse any retaliation that took place. Lower legislation that will provide more details needs to be drafter before this part of the law will enter into force.
Art. 23 (1) - Penalties
The Dutch Whistleblower protection act does not mention any penalties for any of these activities yet. The government currently argues that employees can take their employer to a court if the employer does anyting like this. However, the House for Whistleblowers will be given the authority to impose penalties in due time. See above.
Art. 23 (2) first sentence - Penalties for false reporting
There are also no penalties mentioned for this in the Dutch Whistleblower protection act.
Art. 25 (1) - Further national rights of reporting persons
Employers have to launch both oral and written reporting channels. Soon they will also have to launch anonymous reporting channels; see above.
The legislation is final and has largely entered into force. The only exceptions are the requirements around anonymous reporting and the sanctions that can be imposed by the House for Whistleblowers, as lower legislation still needs to be drafted on these two topics.
Employers will have to appoint an independent person(s) to receive the whistleblower reports and an independent person(s) to follow up on the report. This can ben the same person(s). Also, going forwards, if new confidentiality clauses are put in a contract with an employee, these clauses will be null and void if there is no exception for whistleblowing reports. The Works Council or other form of employee representative body will have to agree with the proposed whistleblower procedure. If there is no such body, employers need to organize a vote and more than 50% of the employees need to agree with the procedure. An employee can also take its employer to court if the whistleblowing procedure does not meet the legal requirements.