by Caroline Raat and Mark Worth
When Caroline Raat interviewed House of Whistleblowers Chair Wilbert Tomesen December 1st 2022, he argued strongly that the Netherlands’ new whistleblower law should give the House the authority to protect employees preventively — before they are fired or demoted [*1]. He argued strongly for the proper protection of whistleblowers through a preventive enforcement power for the House in the new Whistleblower Protection Act. This had not yet been passed by the House of Representatives at that time. This power would ensure compliance, particularly with the ban on employers placing whistleblowers at a disadvantage, better and faster than in court. Because the House had also noted for some time that this is a major problem, even if the burden of proof about this disadvantage shifts with the law to the employer. After all, going to court is long and costly. Often the person making the report has already been harmed to such an extent that the suffering is already irreversible.
Under nearly every whistleblower protection law in the world, protection is an utter misnomer. Employees only can exert their rights after they have been fired, demoted or otherwise retaliated against. This is different under EU law; the Whistleblower Protection Directive and the member states’ legislations that implemented the directive. Article 6 of the Directive means that whistleblower protection is automatic: by operation of the law itself. As soon as a somebody reports in accordance with the procedural rules in the Directive or national law, he has a default status of protected whistleblower.
This is important because by definition, protection is preventive – a seat belt, by analogy. Most other whistleblower laws, however, are like an emergency room. The damage already has been done. Whistleblowers have lost their job, reputation, financial security and sense of well-being. It is too late for the person to be protected. They can only be bandaged up. This automatic protection does not mean that employers are protected in real life: in many cases they still do need a court order to effectuate the protection.
Another system of enhancing preventive protection can be seen in the Law on protection of whistleblowers in the Institutions of Bosnia and Herzegovina. There, a person working in a public institution can apply for a protected whistleblower status if he or she suspects retaliation might occur. This must be done at Agency for Prevention of Corruption and Coordination of Fight against Corruption. The Agency shall decide on affording an employee with the whistleblower status within 30 days following the request, made in a good faith. An employer can be ordered to reinstate a victimized employer without the person needing to go to court. Employers who don’t comply with such orders can be personally fined.
This enforcement tools made all the difference to Danko Bogdanović. The head of Bosnia’s Indirect Taxation Authority suspended Bogdanović after he reported corruption within the agency. When the director refused to comply with an oder to reinstate him, Bosnia’s anti-corruption agency, APIK, threatened to personally fine the director €10,000. Bogdanović was back at work the next day, and colleagues threw him a party.
The Dutch government did not want this extra preventive power that the House wanted (a burden under penalty as regulated in Section 5.3.1 of the General Administrative Law Act (Awb). It is now included in Article 17i of the Whistleblowers Protection Act (Wbk). Member of Parliament Renske Leijten (SP) succeeded in having a third version of an amendment she submitted on December 20th 2022 incorporated into the law, which was passed by the Senate in January 2023 and has been largely in effect for several days [*2]. That amendment introduced into the law not only a preventive coercive power, but also the power to impose a fine. Both powers were deposited with the Investigation Department in its text proposal.
This amendment made it through despite the Minister of the Interior and Kingdom Relations (BZK)’ advised against it on Dec. 19th, 2022. According to her, there would be no need to add sanctioning powers because it would ‘only’ concern issues in the employment sphere. In doing so, the minister actually ignores the fact that this ’employment sphere’ is precisely the most important issue in whistleblower protection legislation: reporters are bullied, slandered, fired or intimidated only because of their report! Reporters must be protected against this. The House for Whistleblowers Act, the predecessor of the new law, failed on this very point: the House was allowed to advise and investigate, but not to protect [*3].
Once the law is in force, reporters can enforce the House to use its protective power within 8 weeks. The House is obligated to act under the Dutch General Administrative Act, and it can be ordered to do so by the administrative court.
For reasons regarding the rule of law, the government rightly pointed out soms possible problems on the presumption of innocence, the power to impose fines, and the European Convention for Human Rights [*4]. After all, a ‘punitive’ administrative sanction must be shrouded in additional safeguards, such as the right to remain silent, adversarial hearings and impartiality of the imposing authority and, within that, the appropriate department. None of this applies, or much less so, to a burden of penalty. This is a preventive measure and in principle is not forfeited; it is not a fine or punishment, but a ‘reparative stick for violators’ to comply with the law and undo any violations. And it is a seatbelt for reporters.
The consequence of including the preventive power and the power to impose fines in a single amendment and article (despite the Minister’s warning) is that for the time being, the entire Article 17i, which not only the House but especially whistleblowers need, will not enter into force. This is because the House has agreed to later effect by Royal Decree, ‘pending the necessary implementation and enforcement test, and further regulations’.
It would have been better ‘legislative craftsmanschip’ if Ms. Leijten had submitted two different amendments with two separate draft provisions; one for the coercive power and one for the penalty power. By doing so, she could have ensured that the House had already been given the much-needed preventive tool. At the same time, it could have also provided for a separate supervisory department to be set up at the House, so that the independence and impartiality would not be compromised by discussions on which institution might be given this authority.
Next April 18th, Caroline Raat will give a highly appreciated course on Dutch and European Whistleblowing Protection Law again [*5].
* [2] Kamerstukken II, 2022/2023, 35 851, nr. 52.
* [4] Kamerstukken II, 2022/2023, 35 851, nr. 52.
*[5] https://www.berghauserpontacademy.nl/aanbod/cl3217/wet-bescherming-klokkenluiders/
