On the 18th of February, the Whistleblower Protection Act came into force. From now on, legal entities of 250 employees or more must have adapted their whistleblowing procedure and have designated one or more independent persons to receive and/or follow up on whistleblower reports. This also applies to all parties in the financial sector and all organisations required to comply with anti-money laundering legislation, regardless of their size. Legal entities with 50-249 employees still have until the 17th of December to prepare for this.
In the end things finally moved quickly. In an earlier blog post, we indicated that the law might come into force as early as of the 1st of April. It turned out to be the 18th of February.
This was probably related to the threat of fines from Brussels. It was recently announced that the EU has initiated legal proceedings against the Czech Republic, Germany, Estonia, Spain, Italy, Luxembourg, Poland and Hungary for late implementation of the European directive to protect whistleblowers. The deadline for this was 17 December 2021, some 14 months ago.
Remarkably, the Dutch law has only partially entered into force. The effective date of the provisions on the mandatory anonymous reporting channels and the sanctions that can be imposed by the House for Whistleblowers have been delayed until further notice. Additional, lower-level regulations for this are yet to be drafted. In addition, we understand that an implementation check will be carried out. The obligation to introduce anonymous reporting channels follows from an amendment by Pieter Omtzigt, which was adopted by the House of Representatives. It does not follow from the European directive. Hence, this part of the legislation did not necessarily have to be introduced at this time to comply with the directive anyway. We estimate that this can still take a few more months.
The details around the sanctions that the House for Whistleblowers can impose will also be interesting. This follows from an adopted amendment tabled by Renske Leijten. The House for Whistleblowers will be given the power to impose sanctions on organisations that have not implemented a proper reporting procedure, that do not follow its instructions or that take retaliatory measures against whistleblowers. A number of EU countries now allow imprisonment for individuals who retaliate against whistleblowers. We are curious as to whether the Netherlands will go this far. Moreover, the European directive states that countries must ensure effective, proportionate and dissuasive penalties. It seems to us that these should be established as soon as possible to comply with the directive.
Want to know more? We hold regular training sessions on the new legislation. The next one will take place on the 8th of March in Utrecht. Also, a local whistleblowing procedure needs to be set up and rolled out for each Dutch legal entity that is in scope. So, if you work at the Dutch entity of an international company, it may be useful for you or one of your colleagues to follow our English-language webinar training sessions.
And if you are struggling to find someone sufficiently independent, suitable and experienced to receive and/or follow up on whistleblower reports, be sure to contact us.
