Finally, the time has come. In June 2021, the draft Dutch Whistleblower Protection Act was submitted by the Dutch government to parliament for approval. With this bill the government wants to implement the European Directive for the Protection of Whistleblowers into Dutch law. The current House for Whistleblowers Act will thereby be renamed the Whistleblower Protection Act.
Compared to the version that was published for consultation last summer, a large number of improvements have been made in this version. See here for the most important changes that follow from the European Directive and here for some criticism on an earlier version of the bill.
Appointment of an independent integrity coordinator
The most striking aspect of the new proposal is that the government does now require organizations to appoint an independent person or department to receive the whistleblowing reports. Organizations must also indicate which official or department will carefully follow up the reports (investigate them or have them investigated). The Explanatory Memorandum explicitly states that this can also be done by external parties. The Integrity Coordinator offers this service.
The speak-up or reporting procedure must also point out that the reporter has the possibility to involve a confidential advisor. Many organizations in The Netherlands have already appointed a confidential advisor. However, it is now much clearer than before that the integrity coordinator and the confidential adviser are two different functions.
Furthermore, an – obviously well secured – register of all reports must be put in place.
Wrongdoing with an impact on society and violations of EU law
Whereas the earlier proposal opted for two routes: one for reporting wrongdoing that may have an impact on society (according to the old House for Whistleblowers Act) and one for reporting violations of EU legislation (according to the EU Directive), most articles now apply to both types of reporting. Nevertheless, the law requires organizations to explain in their procedure when there is wrongdoing that may have an impact on society and when there is a breach of EU law. In addition, it must be indicated to which external authorities a report can be made. In the current draft bill, there are eight such bodies.
We at the Integrity Coordinator already fear that this may trigger organizations to draft multiple pages of legal language. Whereas a good speak-up or whistleblower procedure is short and easy to understand. However, we also have a solution in mind (see below).
Challenge for multinationals
The reference to and explanation of the concept of ‘wrongdoing that may have an impact on society’ is a typically Dutch phenomenon; this does not occur in legislation elsewhere in the EU. It is likely that other EU countries will also include specific local regulations in their national law; we already see this happening. The recently adopted Danish law, for example, already differs from the Dutch proposal in a number of aspects. Therefore it is likely that multinationals will no longer be able to roll out a single global or European reporting procedure, but will instead have to roll out separate procedures in each EU country. That imposes a heavy burden on international organizations.
A different reporting procedure in each EU country?
In our view, it doesn’t have to be like that. An organization with activities in multiple EU countries can (still) use the same short and easy-to-understand speak-up or whistleblowing procedure for any possible violation of a law or the code of conduct and then refer to local protocols. Because of differences in national labor and data privacy laws, there should be a local investigation protocol in each EU country anyway. In addition, one might consider appointing a local integrity coordinator in each EU country who knows the legislation well. The Integrity Coordinator has therefore joined a network of national coordinators.
Making internal reporting attractive
In the new bill, the obligation to first report internally has been dropped. From the perspective of the organization, this is quite annoying. You would like to have the chance to resolve a problem yourself first, before the reporter goes to the authorities or the press. That is why it is important to make internal reporting as attractive as possible. There are also other important reasons for this, see here. In one of the next blogs we will elaborate further on how to make internal reporting as attractive as possible.
Time is pressing
In September, the Dutch parliament will discuss the bill. On the one hand we hope that parliament will make the necessary improvements to the draft law, making it easier for international organizations to comply. Also, the support and position of the whistleblower can be regulated even better. On the other hand, this will hopefully not lead to further delays. Organizations must soon start preparing for the implementation of the new law. After all, the revised procedures must also be approved by the Works Council. Even if both chambers of parliament pass the law in September, organizations will only have two to three months to implement it, including approval by the Works Council. That will be quite a challenge. We would therefore not be surprised if the Netherlands does not meet the December 17 deadline.
Want to know more?
We’ll keep an eye out on the developments for you. Would you like to stay informed? Subscribe to our newsletter by sending an email to info@theintegritycoordinator.com with the heading ‘newsletter’. Or simply reach out to us. We can assist you implementing the new law and be your safety net when things go wrong.
Geert Vermeulen / August 12 2021
