October 24, 2021

Volume XI, Number 297

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October 22, 2021

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October 21, 2021

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The Netherlands Must Step Up Whistleblower Protections According to the OECD and Dutch Authorities

As reported by the Wall Street Journal, recently, the OECD published a report substantiating what whistleblower advocates and nonprofits concluded years ago: anticorruption efforts in the Netherlands have been stymied, in part due to an ineffective whistleblower system.

Although the Netherlands has a whistleblower law in place, a 2015 study showed that it has not encouraged or protected whistleblowers. Eighty-five percent of the true whistleblowers who made reports under this law suffered some type of adverse consequence for reporting, and one-fourth deciding against making or continuing with a report. Now, the OECD has reported that still no foreign bribery cases have been detected and reported under this law in the Netherlands. The law has failed to provide real protection to whistleblowers.

This is particularly concerning given the recent public retaliation against Jonathan Taylor, the British whistleblower who blew the whistle on the Dutch oil company SBM Offshore. SBM Offshore sued Mr. Taylor in Monaco and the Netherlands for defamation. If this weren’t retaliation enough, he is now being held in Croatia. While on vacation there, he was arrested based on an abusive Interpol Red Notice requested by Monaco, apparently related to the defamation suit. Even though the Supreme Court in Croatia quashed the extradition, Mr. Taylor remains in legal limbo in Croatia, unable to return home to the UK. If Mr. Taylor had been protected in the Netherlands in his disclosure of SBM Offshore’s misconduct, perhaps this entire mess could have been avoided.

As is currently being fought for by practitioners, NGOs, and whistleblowers, the Netherlands must update their whistleblower law in accordance with the articles and intent of the new European Union Whistleblower Protection Directive. The current law is not compliant. Until it is, Dutch Authorities will not be able to effectively detect or combat corruption. Dutch whistleblowers will be better off blowing the whistle to other nations’ law enforcement where foreign laws are applicable.

Indeed, as acknowledged by the current head of the Dutch Whistleblower Authority, Wilbert Tomesen, in a recent interview, Dutch society must, and does not have the ability to under the current law, fully protect whistleblowers and sanction wrongdoers. He envisions a system where his office is given greater authority or acts as a node in a web of competent authorities to protect whistleblowers in concrete ways. Changes Mr. Tomeson identifies that would strengthen the Dutch whistleblower law include granting a government agency the authority to “freeze” an employment situation to prevent further escalation against a whistleblower-employee, allowing the government to sanction retaliatory employers, and creating a system to financially support whistleblowers. Similar measures that have been widely proposed by civil society groups would be resoundingly supported in the whistleblower community and would comply with the strictures of the Directive. As Mr. Tomeson aptly put in this interview:

Society should not leave the reporting persons to their own devices – what they have put their finger on transcends the individual relationship between employee and employer […] People who are doing something that benefits society deserve to be helped with its consequences.

Copyright Kohn, Kohn & Colapinto, LLP 2021. All Rights Reserved.National Law Review, Volume X, Number 317
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About this Author

Associate

Maraya Best is an associate attorney with Kohn, Kohn & Colapinto. Ms. Best was the 2018 recipient of the highly prestigious and competitive Estelle S. Kohn Memorial Fellowship awarded by Northeastern University School of Law. She graduated from Northeastern University School of Law in May 2018 and holds a Bachelor of Arts degree in International Affairs and Hispanic Studies from Lewis & Clark College. Her background is in international human rights law, which she brings to KKC’s international anticorruption practice.

202-342-6980
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