* Please see here for a Dutch translation. *
The Dutch Whistleblower Protection Act entered into force last Saturday, February 18 2023, with the exception of the sanctioning powers of the Dutch House for Whistleblowers and the rules relating to submitting an anonymous report. These elements will enter into force at a later (yet to be announced) time. This was announced last Friday 17 February in the Dutch Bulletin of Acts and Decrees (Staatsblad 2023, 52).
This immediate entry into force is striking and exceptional, but the Dutch Minister considers it necessary due to the ultimate implementation date of the EU Whistleblowing Directive (17 December 2021) being exceeded. For this reason, the Act entered into force immediately (one day after its publication in the Bulletin of Acts and Decrees). This is in contrast to Belgium, for example, where employers have been given almost two months to comply with the respective implementation law after publication of the effective date.
This means that large employers (with at least 250 employees) must now (as of 18 February 2023) comply with the new law and must have adjusted their internal reporting procedures accordingly. Medium-sized employers (50-249 employees) will have longer, namely until 17 December 2023. Note that employers with fewer than 50 employees do not have to comply with the new law. Also note that in addition to regular employees, the term 'employee' includes 'anyone who otherwise performs work for remuneration in a subordinated relationship', such as interns and volunteers, insofar as they receive remuneration for their work. Under the new law, the term 'employee' has been slightly limited, as the requirements of a subordinated relationship and remuneration did not apply under the old law.
The Dutch Whistleblower Protection Act replaces the Dutch House for Whistleblowers Act and provides for new protection measures. For example, whistleblowers are no longer obliged to first submit a report internally, the retaliation prohibition has been expanded, the persons who can submit a protected report as well as the definition of protected reports have been expanded, a prohibition on silencing reporters has been introduced and stricter requirements apply to the internal reporting procedure itself (inter alia relating to anonymous reports, deadlines and mandatory registration of reports). The investigation department of the Dutch House for Whistleblowers (Huis voor Klokkenluiders) has also been given sanctioning powers, including imposing fines (amount not yet known), namely in the event of retaliation, failure to follow its instructions or in the absence of an internal reporting procedure. Rules relating to submitting anonymous reports and the sanctioning powers of the House are yet to be set out in subordinate legislation. Hence, these elements have not yet entered into force.
The immediate entry into force (on a Saturday, nota bene) is striking. After all, while the Parliamentary debate in the Dutch House of Representatives took almost a year and a half (adopted on 20 December 2022), the Dutch Senate dealt with it as a formality on 24 January 2023, without any debate. After that, there has been silence and the Minister only stated that the new law would enter into force at the same time as a number of amendments to some administrative orders (being the Decree on the General Legal Status of the Police, the Civil Servants Regulations for Defence and the General Military Civil Servants Regulations), which have not yet all been published.
Most employers will not yet have adjusted their internal reporting procedures in accordance with the new law. In doing so, employee representative bodies must be involved as well. For the implementation at company level, the works council (or possibly the so-called personeelsvertegenwoordiging in smaller companies), if present, will have to give its prior approval.
More information
See our previous blog (in Dutch): Dutch Whistleblower Protection Act adopted by Parliament (31 January 2023).
See also (in Dutch): press release Ministry of the Interior and Kingdom Relations (17 February 2023).
