At the beginning of July, we informed you that the Lower House Committee on Home Affairs would be holding a written consultation, during which questions could be submitted to MP Pieter Omtzigt about his memorandum, in which he proposes a number of adjustments to improve the law, and to the Minister. The deadline for this was 22 July.
A limited number of responses were received. Particularly interesting is the contribution of the government parties D66 and VVD. They both wish for more clarification of the term ‘public interest’. After all, only whistleblowers who make a report whereby the public interest is at stake, are protected. The VVD wishes to maintain this criterion, but asks for clarification. When is the public interest at stake? D66 wonders how maintaining the term ‘public interest’ lowers the threshold for reporting. The SP also asks why this choice was made. After all, this means that some of the reports cannot be investigated, even though they may concern serious abuses. We too would prefer that the term ‘public interest’ be removed and that all reporters of serious misconduct be protected. And here, too, further clarification would be helpful.
Questions have also been asked about anonymous reports. D66 wonders how the difference between confidential and anonymous reporting can be better communicated. And since reporting anonymously is already done in practice and appears to work, the VVD wonders whether a provision could be included in the law for this. That seems like a good plan to us. The SP, too, would like to discuss this further. In addition, they would also like to discuss the possibilities of sanctions, the expansion of the ban on retaliation and the establishment of a fund for whistle-blowers.
Transparency International Netherlands
Transparency International Netherlands (TI-NL) has also reacted (Dutch language) to the amended bill. They still have the necessary criticism on the current proposal. This is quite similar to our recommendations, see our articles about the second amendment to the bill and our wish list for the Whistleblower Protection Act. They too focus on, for example
- the deletion of the requirement of ‘public interest’
- deleting the requirement of the legal basis for internal rules
- better financial and psychosocial support for whistleblowers
- deterrent sanctions for non-compliance with the law, and
- the explicit inclusion of the possibility to report anonymously.
In addition, we would like to see:
- The security of reporting channels be included in Dutch law. This is also stated in the European directive.
- Extending the professional secrecy rights (privilege) to integrity coordinators and confidential counsellors. This possibility is mentioned in recital 27 of the Directive. The Netherlands has not yet made use of this possibility.
Expert Group European Commission
Meanwhile, the minutes of the last meeting of the Expert Group of the European Commission have been published. Consultations between the European Commission and the Member States take place in this group. The subject ‘anonymous reporting’ was also on the agenda. A number of countries indicated how they had organised anonymous reporting, for instance by making it mandatory to follow up on these reports. In some sectors this is obligatory anyway, as a result of sector-specific legislation. Although the Commission leaves it up to the Member States whether or not to facilitate anonymous reporting, this existing legislation must of course be followed. For example, organisations that fall under the scope of the Anti Money Laundering and Terrorist Financing Act are obliged to facilitate anonymous reporting. The Committee even called it good practice to make it a criminal offence not to follow up anonymous reports. The President also noted that there were IT platforms that make it possible to communicate securely with anonymous reporters. The European Commission also uses them. Member States shared information on this.
What happens next? In July, the Lower House Committee requested a quick opinion from the Council of State on the last proposed amendment of the act, preferably before 1 September. On 6 September, a technical briefing is scheduled by the Ministry of the Interior. And on 15 September, there is another procedural meeting. After that we will hopefully know more about the follow-up.
In any case, the Lower House believes it is important to have a good law. At the same time, they want to avoid fines from Brussels for violating the deadline of 17 December 2021 for the implementation of the directive. The European directive is already valid within the public sector anyway. We therefore expect the new law to be adopted before the end of 2022 and to take effect fairly soon thereafter.
Do you want to know more about the introduction of the new legislation? Then we advise you to follow our Course on the Whistleblower Protection Act. Just fill in the contact form and indicate it if you prefer to follow an English language course.