The Dutch Whistleblowing Protection Act (Wet Bescherming Klokkenluiders) (the "Act") gives effect to the Whistleblowing Directive and was signed into law on 25 January 2022. It replaces the Whistleblowers Authority Act, which is a prior piece of legislation in NL law, dealing with whistleblowing.
The Act partially entered into force on 18 February 2023. Clauses relating to anonymous reporting and enforcement will enter into force at a later date, which is still to be announced.
Entities with from 50 to 249 employees have until 17 December 2023 to establish proper internal reporting channels.
Entities with 250 employees or more and falling within the scope of Annex I.B and II to the Directive (such as organisations subject to the Wwft and/or operating in (i) financial services, products and markets, (ii) civil aviation, (iii) maritime labour and port state control, or (iv) offshore oil and gas activities), are obliged to set up an internal reporting channel, are also obliged to estblish an internal reporting channel before 17 December 2023.
Reporting topics, as included in Article 1 of the Act:
- a breach of EU Community law (violation or undermining the material scope in Article 2 WBD); or
- an act or ommission jeopardising a public interest in the following sense:
1. a (risk of) violation of a statutory regulations or internal company regulations containing a concrete obligation which internal regulations have been established by the company pursuant to a statutory regulation; or
2. a danger to:
(i) public health;
(ii) the safety of persons;
(iii) the environment; or
(iv) the proper functioning of the public service or an enterprise;
Same definition as used in the Directive.
Internal reports: the choice of the most appropriate persons or services for receiving and following up on reports may depend on the structure of the entity, but their independence and the absence of conflicts of interest must at all times be safeguarded. Also, the internal whistleblowing policy must state to whom an internal report can be made.
External reports: in case of a direct external report, the reporter can address any of the competent bodies stated in article 2c of the Act, dependent on the nature of the report. These bodies are as from that moment responsible for investigating reports and taking appropriate action. Based on Article 2c of the Dutch WB Act, the designated competent external bodies are:
a. the Authority for Consumers and Markets (Autoriteit Consument & Markt);
b. the Authority for the Financial Markets (Autoriteit Financiele Markten);
c. the Data Protection Authority (Autoriteit Persoonsgegevens);
d. the Central Bank of the Netherlands (De Nederlandsche Bank)
e. the Whistleblowers Authority (Het Huis voor Klokkenluiders);
f. the Health and Youth Inspectorate (Inspectie gezondheidszorg en jeugd);
g. the Dutch Healthcare Authority (de Nederlandse Zorgautoriteit); and
h. the Authority for Nuclear Safety and Radiation Protection (Autoriteit Nucleaire Veiligheid en Stralingsbescherming); or
Other competent authorities as may later be designated by ministerial public decree on the basis of the Dutch WB Act.
In principle yes. However, companies falling within the scope of Annex I.B and II to the Directive, are obliged to set up an internal reporting channel, regardless of the number of employees.
No.
Yes, the Reporting Person must receive an acknowledgement of receipt, within seven days of receipt of the report. Ultimately within three (3) months after sending this acknowledgement of receipt, the Reporting Person must be informed on the assessment of the report and, if applicable, any follow-up actions related thereto.
It will be, but the relevant provisions (Article 2, e + f) relating to anonymous reporting have not yet entered into force.
Yes, once the relevant provisions have entered into force.
The current Dutch Whistbleblowing Act mentions that retaliatory measures adopted against the whistleblower are null and void (Article 17h). The exact legislation relating to retaliation en enforcement, has not been published and entered into force.
This is not specifically discussed in the Dutch Act. It only provides that 'resources' may be shared between private sector entities of 50-249 employees.
It is assumed that nothing prevents a company to have a group-wide reporting channel in addition to a local reporting channel, when the latter meets the requirements in the Dutch WB Act.
