On December 3, 2024, the Standing Committee on the Interior of the House of Representatives held a debate with Minister Uitermark (of NSC) on the status of the Whistleblower Protection Act. This also addressed the supervisory role of the Dutch Whistleblowers Authority and it’s authority to issue sanctions. From abroad, we know that employers take the obligation to set up proper whistleblower procedures a lot more seriously if there are firm penalties for non-compliance, as is the case in Spain, for example.
More than two years ago, in December 2022, the House of Representatives unanimously passed the Whistleblower Protection Act (WPA). In doing so, the parliament adopted two important amendments. For example, employers are required to establish anonymous reporting channels. In addition, the Dutch Whistleblowers Authority was given a supervisory role and the power to impose sanctions.
The WPA entered into force in February 2023, with the exception of these two amendments. Indeed, according to the minister, this was not necessary to comply with the EU directive protecting whistleblowers. This was a peculiar position, since the EU directive requires member states to establish deterrent sanctions for non-compliance. Now, however, fines and a maximum prison sentence of one year stand for revealing the whistleblower’s identity. However, it is our experience that many employers are not yet in a great hurry to set up reporting procedures that meet the legal requirements.
In early 2023, the minister indicated that she wanted to study the two amendments a little longer. By now we are almost two years down the road. Meanwhile, on behalf of the ministry, an academic legal report by Pro Facto did appear.
Pro Facto concluded in early 2024 that of the three components on which the Dutch Whistleblowers Authority would be allowed to sanction employers, one was legally infeasible: sanctioning employers who fail to follow recommendations made by the Research Department. This is because recommendations are not obligations. The other issues are the imposition of sanctions for harming a whistleblower and not having a whistleblower procedure.
SP-Member of Parliament Van Nispen asked the minister to introduce the last two points (which are legally feasible) already via an Order in Council. The minister is taking this into consideration.
During the debate, the minister further indicated: “The amendment states that that task (issuing sanctions) should be added; that is simply a political fact. The question now is how, at what time and in what way do we set that up that way. We are really exploring that now. For me it is important that the Authority has a firm position and that we don’t overcharge the Authority, but that the Authority has and keeps enough teeth.”
Therefore, the ministry will begin drafting a bill this spring based on the legal opinion on the sustainability of the sanctioning power. The minister estimates that it will then take another one to two years to complete the entire process up to the Senate.
The Dutch Whistleblowers Authority responded enthusiastically.
Minister Uitermark further promised to come up with a letter in spring 2025 explaining the above points, plus the other issues discussed, such as anonymous reporting, legal and psychosocial assistance for whistleblowers, a fund for whistleblowers, the ban on eavesdropping on calls to the Authority, the other proposals from Pieter Omtzigt’s own-initiative memorandum and a public campaign on an open work culture. The minister’s impression is that the current campaign has reached the frontrunners, but that more focus is now needed on the rest. That, by the way, is our impression as well. The minister is therefore going to extend and broaden the public campaign.
The evaluation of the WPA is scheduled for 2026, and preparations for a follow-up bill are underway.
The outline agreement, the basis on which the current cabinet was formed, states that “the protection of whistleblowers will be strengthened.” Presumably, NSC insisted that this be included. Therefore, we hope that the current Minister of the Interior, whom NSC has delegated to the Cabinet, will move forward on this issue. For now, however, it seems the official mills are turning slowly.
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