Published On: December 16th, 2020

It is therefore important to encourage reporters to first submit a report internally and then demonstrate to them that the organisation addresses these reports quickly and seriously.

Geert Vermeulen, The Integrity Coordinator

New EU Directive for the protection of whistleblowers

A new EU Directive was adopted at the end of 2019 requiring organisations to adapt their whistleblowing procedure, also known as the speak-up procedure, ethics helpline, hotline or reporting procedure. In our previous blog, we described that proper whistleblowing procedures benefit individual organisations and society at large. In this blog we describe the most important changes and what this means for you.

Deadline 17 December 2021

The Dutch House for Whistleblowers Act has been in force in the Netherlands since 1 July 2016. This law states that organisations with more than 50 employees have to put an internal whistleblowing procedure in place. With this, the Netherlands leading the way in Europe. At the end of 2019, however, a European Directive for the protection of Whistleblowers was adopted, which must be implemented in Dutch law by 17 December 2021 at the latest. This Directive contains a number of interesting new elements, which organisations must comply with by that time.

That is to say, the EU Directive gives organisations with 50-249 employees two more years to launch a whistleblowing procedure. Under the House for Whistleblowers Act, however, these organisations must already have a whistleblowing procedure in place now.

Whereas the Whistleblowing House Act focuses on reporting serious wrongdoing, the EU Directive focuses on breaches of EU law. For most organisations, that should not make much of a difference; it is simply a good idea to investigate each report properly anyway.

Reversed burden of proof

One of the most important elements in the new law is the reversal of the burden of proof. Whereas previously the whistleblower had to prove that he or she had suffered retaliation as a result of his or her report, under the new legislation the employer has to prove that an unfavourable decision with regard to an employee is not the result of a previous whistleblowing report.

New requirements for the whistleblowing procedure

It must be made possible to submit whistleblowing reports both orally and in writing, and this must be done in a confidential manner. The reports must also, of course, be treated confidentially. The whistleblowing procedure must be made available not only to employees, but also to customers, suppliers and other business partners. There are now also response deadlines in the directive. Reporters must receive confirmation of the receipt of their report within 7 days. A substantial response from the organisation must follow within 3 months after that.

Although internal reporting is encouraged, the whistleblower may also turn directly to the authorities or the press, if the reporter can demonstrate that the report is not adequately addressed internally. It is therefore important to encourage reporters to first submit a report internally and then demonstrate to them that the organisation addresses these reports quickly and seriously. It is therefore necessary to communicate with the reporter well and in good time.

More organizations have to put a whistleblowing procedure in place

Another important aspect of the new Directive is that many more organisations than before have to draw up a whistleblowing procedure. For a number of sectors, the threshold of 50 employees no longer applies. These are mainly organisations that fall under the scope of the Wft, the Wwft and the Sanctions Act, i.e. the financial and anti-money laundering legislation. These include banks, insurance companies, payment providers, insurance brokers, managing general underwriters, real estate brokers and valuators, accountants, financial administrators, tax consultants, law firms, notaries, trust offices/corporate services providers, casinos, money exchange offices, cryptocurrency changers or providers of cryptocurrency wallets, as well as financial advisors who recommend a specific product and traders in high-value goods.

An insurance or real estate broker with 3 employees will therefore have to appoint someone, who is impartial, to coordinate the internal whistleblowing procedure. The question arises whether this is useful, but that is irrelevant, as there is no way to escape this requirement.

Who should be the coordinator?

Large organisations can give this the role to the Chief Ethics & Compliance Officer (preferably) or alternatively to the Head of Internal Audit, as they are usually sufficiently independent. This is then laid down in the Compliance Charter or the Audit Charter. The HR and Legal departments usually do not operate independently of management and therefore it is not recommended to give this role to them. It will be very difficult for smaller organisations to appoint someone who is capable, impartial and unlikely to face conflicting interests. They can appoint The Integrity Coordinator as their external, independent coordinator of the whistleblowing procedure.

Besides that, we are also happy to work with industry organisations to develop a cost-efficient solution for the members of their association.

So, what should you do?

  • Organisations with more than 50 employees must appoint an impartial coordinator of the whistleblowing procedure

  • In a number of industries this also needs to happen if you have less then 50 employees

  • It makes sense to check your current whistleblowing procedure against the new requirements, as described above

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