Netherlands - Whistleblowing Laws in Europe: An international guide

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1) Local Laws

a) Has the country implemented any laws / regulations on whistleblowing (Local Law)?

Yes, the Dutch Whistleblowers Authority Act (the Act) offers protection for employees in the public and private sectors who report presumed wrongdoing that may harm the public interest. The Act applies to employers with 50 or more employees.

2) Scope of application

a) What types of wrongdoings are covered by the Local Law? Does it cover breaches of EU law?

The Act offers protection against disadvantaged treatment for employees in the public and private sectors who report presumed wrongdoing that may harm the public interest, and includes either 1) breaches of law, 2) danger to health, safety of people or the environment, or 3) improper acts or omissions that endanger the functioning of a public agency or firm. In accordance with Article 2 of the Act, the employer implements a policy that includes wording on what is meant by suspicion of misconduct as referred to in the Act.

b) Personal scope

  1. Does the Local Law apply to reporting persons working in both the private and public sectors?

  2. The Act applies to employees or former employees (Article 1 sub d).

  3. Does the Local Law apply only to breaches that the reporting person became aware of in a work-related context?

  4. Yes, the Act applies in so far that the reporting employee reports a presumed wrongdoing (as described previously) within the organisation the reporting employee works for or has worked for in the past, or within another organisation the reporting employee has come into contact with when performing their work.

  5. Does the Local Law also protect: facilitators; people connected to the whistleblower and who could suffer retaliation in a work-related context; and legal entities the whistleblower owns, works for, or is otherwise connected with?

  6. No, only the reporting employee is protected under the Act (Article 2 (3)).

c) Does the Local Law require specific conditions to protect reporting persons?

On the basis of Article 7:658c of the Dutch Civil Code (DCC), the employer may not disadvantage the employee as a result of properly reporting in good faith suspected misconduct as referred to in the Act during and after the handling of this report to the employer.

3) Reporting channels

a) Does the Local Law allow anonymous reports? How are companies/agencies meant to handle them?

Yes. However, Article 5 of the Act states that anonymous reporting is discouraged.

b) Is there a duty of confidentiality and any derogation from this duty?

It is the employer’s obligation to treat a report confidentially at the employee’s request (Article 2 (2) sub d).

c) Public disclosures: does the Local Law provide for this possibility?

No, there are no specific provisions on public disclosure.

4) Reporting channels: internal

a) Is there an obligation for private and/or public legal entities to establish channels and procedures for internal reporting and follow-ups?

In accordance with Article 2 of the Act, the employer implements a policy on several topics. The policy includes channels and procedures for internal reporting. This obligation applies to legal entities if they employ 50 or more employees.

b) Do internal reporting channels need to allow reporting in writing, orally or both?

The Act does not set forth any specific requirements in this respect.

c) Procedures for internal reporting and follow-up: does the Local Law require legal entities to adopt internal reporting systems with the following elements?

  1. Channels able to ensure the confidentiality of the identity of the reporting person and the protection of third parties mentioned in the report:

  2. In accordance with Article 2 of the Act, the employer implements a policy on, among others, the protection of the reporting employee. This might impose procedures on confidentiality or the identity of the reporting person.

  3. Acknowledgement of receipt of the report to the whistleblower within seven days of receipt:

  4. The Act does not make any reference to acknowledgement of receipt. We assume this might be regulated by the policy, which varies by employer.

  5. The designation of an impartial function/team to manage follow-ups on reports and maintain communication with the whistleblower:

  6. In accordance with Article 2 of the Act, the employer implements a policy on, among others, appointment of an employee/team that receives and evaluates the report.

  7. Any other follow-up requirements including those for anonymous complaints:

  8. There are no other follow-up requirements.

  9. A reasonable timeframe to provide feedback, not exceeding three months from acknowledgment of receipt or if no acknowledgement was sent, three months from the expiry of the seven-day period after a report is made:

  10. No time frame for feedback is provided.

  11. Providing clear and easily accessible information on internal reporting procedures and external reporting procedures to competent authorities and/or EU institutions/bodies:

  12. In accordance with Article 2 of the Act, the employer implements a policy on, among others, appointing the employee that receives and evaluates the report. The policy must also provide information about where the reporting employee can go after completing the internal procedure and which external bodies the reporter can turn to (Whistleblowers Authority, see below).

  13. Should legal entities take any additional measures in order to comply with the above requirements?

  14. Within the policy, the employer should make sure that the reporting employee is informed on the fact they can consult an advisor in confidence.

5) Reporting channels: external

a) Has the country designated a competent authority to receive and investigate whistleblower disclosure and retaliation complaints?

Yes. The Dutch Whistleblowers Authority is competent to receive and investigate whistleblower complaints after the internal procedure has been followed (unless following an internal procedure, from a reasonable point of view, is not be required). The Whistleblowers Authority conducts investigations into wrongdoing within organisations or into the disadvantaging of employees due to reporting wrongdoing.

b) Is an independent and autonomous external reporting channel already established in the country?

Yes, the Dutch Whistleblowers Authority.

6) Processing of personal data

a) Is personal data concerning the reports processed in compliance with local and EU legislation such as EU Regulation 2018/1725 and local privacy laws?

For lawful processing it is necessary to provide prior notice of the whistleblowing policy to all employees. Consent for data processing is not required. Please note that all other General Data Protection Regulation (GDPR) requirements should be met e.g. principles such as data minimisation should be taken into account, processing activities should be covered in the company’s records of processing, data subject requests should be adequately dealt with, etc.

7) Record keeping of reports

a) Is there any obligation regarding record keeping of reports as provided for by the EU Directive?

If the report does not give rise to any disciplinary or judicial proceedings, all verified personal data related to a report should be destroyed within two months from the date the report is closed. If the report results in any disciplinary or judicial proceedings, the processed personal data should be retained for a period of five years after the proceedings are final. If the report relates to environmental liability, the data should be retained for 30 years. Any information in a complaint or report that is of no relevance or interest to the allegations should be destroyed promptly.

8) Protection

a) Is there any difference between whistleblower protections in the private and public sectors?

No, there is no difference between private and public sectors.

b) Are whistleblowers protected against all forms of retaliation including threats and attempts of retaliation? Which forms of retaliation are expressly indicated?

The employer may not disadvantage the employee as a result of properly reporting in good faith suspected misconduct as referred to in Article 1, part d of the Act during and after the handling of this report by the employer (Article 7:658c DCC).

c) Does the Local Law provide for any other measures of support such as those indicated in the EU Directive?

Yes. In accordance with Article 2 of the Act, the employer implements a policy on several topics. These include the right of the reporting employee to consult an advisor.

d) Does the Local Law provide for the necessary measures to prohibit any form of retaliation against whistleblowers?

On the basis of Article 7:658c DCC, the employer may not disadvantage the employee as a result of properly reporting in good faith suspected misconduct as referred to in the Act during and after the handling of the report by the employer.

e) Does the Local Law provide for any remedial measures, including interim relief measures?

The Act does not set forth any specific requirements in this respect.

f) Does the Local Law provide for exemptions from liability for whistleblowers?

The Act does not set forth any specific requirements in this respect.

g) Does the Local Law provide for sanctions against natural and legal persons that violate whistleblowers’ protection or the duty of maintaining the confidentiality of their identity?

The Act does not set forth any specific requirements in this respect.

h) Does the Local Law provide for sanctions in case of false reports?

Yes, the reporting employee is not protected against disadvantaged treatment if their reports are false (Article 7:658c DCC).

9) Other issues

a) Under the Local Law, is adopting a whistleblowing system relevant to assess the adequacy of a compliance program? Does this have any value to mitigate or eliminate criminal liability for legal entities?

Adopting a whistleblowing system can be relevant to assess the adequacy of a compliance program. However, there is no criminal liability for the absence of a(n) (adequate) compliance program.

b) Does the Local Law or another law in your country provide for whistleblower reward programs?

No, the Act does not set forth any specific requirements in this respect.

c) Can companies benefit from any incentives in the case of voluntary self-disclosure of violations they became aware of following an internal report?

No, the Act does not set forth any specific requirements in this respect.

d) Will implementing the EU Directive create any issues with obligations provided for under other laws / regulations?

No, we do not anticipate any such issues.


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