Clifford Chance

The preparations for the parliamentary debate on the implementation of the Whistleblower Protection Directive in the Netherlands, have resulted in amendments to the initial bill.

The Netherlands have not met the deadline of 17 December 2021 for transposing the Whistleblower Protection Directive (the "Directive") into national law.

This means:

• Private companies with 250+ employees will only need to comply with the new legislation once enacted, probably in the course of 2022.
• Companies with 50-249 employees will need to comply with the new requirements by 17 December 2023 (following implementation of the Directive).

However, pursuant to currently applicable legislation, an internal procedure for reporting wrongdoing should already be in place for companies with 50+ employees.

Questions in anticipation of the parliamentary debate have resulted in the following notable changes to the bill implementing the Directive in December 2021:

• the explicit right for every interested employee to request the Court to order the employer to establish an internal whistleblower procedure consistent with the implementation bill within a timeframe set by the Court;
  
• if a works council is absent: the consent of more than the majority of the employees when establishing an internal whistleblower procedure (unless the contents hereof have been provided for in a collective labour agreement); and
  
• any confidentiality or loyalty clauses (e.g., in employment or settlement agreements) preventing or limiting reporters to disclose any whistleblower claims will be null and void (unless these already exist prior to enactment of the new bill).

Following its meeting on 13 January 2022, the committee responsible for preparing the debate of the bill in Parliament has raised further questions to the Dutch Minister of Interior and Kingdom Relations. No date for the plenary debate of the bill has thus been set yet.