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Friday 7 February 2025 marked the first time in employment law land that the Supreme Court has delivered a judgment on the Whistleblowers Protection Act (Wbk). 

The Wbk

Although since the abuses at the Voice of Holland, among others, it has been a common good to properly protect whistleblowers from possible retaliation, the Wbk does not apply to every company. It is mainly medium-sized (50 to 249 employees) and large (more than 250 employees) companies that really need to pay close attention to this. 

An important part of the law is that a whistleblower may not be harmed because of his report if he has reasonable grounds to believe that his report is correct. Building on this, the Wbk has a presumption of evidence in favour of the whistleblower. In short, this presumption of evidence means that if a reporter is disadvantaged after his report, for example if the reporter is subsequently dismissed, it is assumed that this is inextricably linked to the report or its disclosure.

What to do as an employer?

It may happen that an employee has made a whistleblower report and the employer wishes to impose a measure on him for it, such as dismissal. Whether this can actually be done depends on the circumstances of the case, which now adds an onerous extra circumstance.

Indeed, the presumption of proof means that the employer starts at a disadvantage, and namely it is up to her to prove that the employee is not disadvantaged because of the whistleblower report. The Supreme Court has indicated that to do so, it is insufficient to ‘disprove’ the cause-and-effect relationship between the measure and the report. As an employer, you really have to prove that the whistleblower report has nothing to do with the intention to impose the measure. And this is a lot trickier, since as an employer you really have to prove otherwise.

As an employer, it is of course always important to (be able to) substantiate well why a dismissal is being decided. In the case of a whistleblower's report, after this Supreme Court ruling, we can say that the bar is set a little higher in that case.
Do you have questions about this or would you like advice on your whistleblowing policy? If so, please contact our employment law specialists: Dennis Oud, Elke Hofman-Bijvank, Tessa Sipkema or Tim van Riel.

You can read the ruling here.

To lodge an objection or appeal against a decision of an administrative body, you, as a citizen or business, must be considered an interested party. It is clear from established case law that the person directly affected by the actual consequences of an activity authorised by the decision is, in principle, an interested party. The factors considered are distance from, view of, planning impact of and environmental consequences of the activity the decision authorises. 

What citizens and businesses often think is that once they have been interested parties in a development near them, they are always interested parties in future cases. So did the applicant in the Divisional Court ruling of 28 January 2025. 

What exactly was going on here? The applicant had not only lodged an appeal, but also requested the Division to grant a preliminary injunction because the Gooise Meren Municipal Executive had granted an environmental permit for the expansion of the existing canopy for fast charging on a plot in the applicant's neighbourhood. Mind you, the environmental permit only covered the extension of the canopy and not the installation of the fast chargers. 

Despite the fact that his objection was declared inadmissible and his appeal unfounded, the applicant believed he was an interested party. He argued that in the past, he had been considered an interested party in developments near the parcel now affected by the environmental permit. The Division did not agree. It ruled that the applicant was not an interested party because the distance between the applicant's home and the plot in question was more than 800 metres. Although the applicant might suffer some impact from the extension of the canopy, it could not be said to be an impact of any significance precisely because of the large distance between the two plots. It was irrelevant that the interested party had also been an interested party in the past. After all, the circumstances of the case are always considered.

You can read the Division's decision here.

Padel is hot among the sporting public. Although padel courts are springing up like mushrooms, it is still a struggle to reserve a court. Despite padel rapidly gaining popularity among the general public, local residents are increasingly complaining about nuisance or trying to prevent the arrival of new courts. Consequently, the Administrative Law Division of the Council of State increasingly has to rule on the desirability and admissibility of new padel clubs. 

This week, two new decisions were published in which the Division ruled on the arrival and possible expansion of padel clubs. In one judgment, the municipality was found to have acted correctly, while in the other the municipality was reprimanded.  

First, the ruling of 27 January 2025. The council of the municipality of Maashorst adopted a new zoning plan, which allows for a multifunctional sports accommodation. The applicant disagreed with the adoption of this zoning plan, as he feared adverse effects of (in particular) the noise of the two padel courts on his residential and living environment. The Division ruled that in this case the council's reasoned position, that an acceptable living and working environment would be maintained, could be followed. The applicant has not sufficiently demonstrated that this would not be the case. After all, the council has also submitted a noise report and the Division saw no reason to doubt this report. 

In the other ruling dated 29 January 2025, the Division ruled differently. Here, the Division had to consider whether the planning regulations in the adopted zoning plan ‘Woongebieden Kom Uden’ were strict enough with regard to the realisation of new padel courts. In fact, new padel courts may be built on land zoned ‘Recreation’ without restriction, or at least no restriction has been included about this. The appellants therefore feared that their living conditions would be affected. They argued that the council had not conducted a new acoustic survey before this new zoning plan was adopted. The Division ruled that the council could not have adopted the zoning plan on this point without having a new acoustic investigation carried out into the noise pollution caused by the playing of padel within the entire sports complex. The zoning plan cannot therefore stand on this point. 

Do you have any questions in this regard? If so, please contact Gerard van der Wende or Fleur Huisman. 

After long litigation, a judgement finally comes down in your favour. The other party has to pay your claim. But now, when you want to enforce the judgement, it turns out that the legal entity is empty (and has no assets left). There is nothing to recover from the opposing party, making the judgment basically useless. You then note that another company has been set up by effectively the same people with effectively the same activities. This, of course, feels a bit crooked.

Nevertheless, there is an opportunity to recover the claim if the other party is a shell legal entity. This may be possible through identification. Conjunction means that a new legal entity is established that has actually taken over the full identity of the other legal entity and, in the process, also performs the same acts. Often, the second legal entity is incorporated to disadvantage creditors, as these creditors in principle have no claim against the newly incorporated legal entity. However, it should be noted that identification does not apply to a restart in case of bankruptcy. Indeed, the incorporation of a new legal entity is of course not prohibited in theory, but if this is done to avoid liability, rules exist to protect creditors. With identification, the identity difference is eliminated, which means that the claim that should in principle be recovered from the empty legal entity can now be recovered from the newly created legal entity.

To demonstrate identification, one needs to show that there is interrelatedness. Think of the same industry, the same customers, the same working methods, the same agreements, etc. In addition, the incorporation of the new legal entity is often simultaneous with legal proceedings or just before. Another condition is that the assets and other income of the old legal entity, are now in the newly established legal entity. The so-called Rainbow judgment states that the new legal entity can be held liable for e.g. an unexecuted judgment if the new legal entity is a continuation of the old legal entity and its incorporation is intended to disadvantage creditors. 

However, this sounds easier than it is, because how do you concretely determine whether there is identification (and thus the same identity)?

By doing a lot of research! Although this is easier said than done. By looking at various aspects, you can conclude whether there is intertwining. For example, comparing the websites of the different legal entities, agreements used and what business activities both legal entities conduct. In the Chamber of Commerce, you can further look at the time of incorporation and the annual accounts of both legal entities and compare them. Do all these aspects match fairly identically? Then they can be said to be intertwined. In short, it is important to scrutinise the issue thoroughly. 

All in all, identification is difficult to prove, but certainly not impossible. In this way, the creditor does not have to stand empty-handed if he knocks on the door of an empty BV.

Advice on identification or are you having problems with a non-paying party? Then contact one of our Corporate Law specialists. 

Unfortunately, due to pressures at many (lower) levels of government, it happens more and more often that an administrative body is unable to take a decision on your application within the stipulated period. As a result, you may have to wait a long time for a decision on, for instance, your permit application. What many citizens and companies do not know is that administrative bodies can also suspend the so-called decision deadlines, for instance when the applicant has to provide additional documents for the application. The question is whether an administrative body can do this of its own accord, or whether it needs the applicant's consent to do so. 

The Administrative Law Division of the Council of State ruled on this in its decision of 15 January 2025. The Division ruled that et administrative body can only suspend the decision period if the applicant agrees, this has been confirmed in writing and this has happened before the decision period has expired. This follows from Article 4:15(2) opening words and (a) of the Awb. 

Because the administrative body in this case had not complied with the requirements mentioned above, the condition for suspension of the decision period had not been met, so the decision period continued to run and ultimately the decision period expired without a decision being made. Under the old legislation, this meant that the environmental permit had been granted by operation of law. Under the new legislation, this possibility has lapsed, meaning that an environmental permit cannot be granted merely due to the expiry of the decision period. 

So what can you do against a late decision? When the decision period expires, you can declare the administrative body in default and claim penalty payments. I discussed how this works in my previous blog, in which I also discuss the possibility of sending such a notice of default electronically. 

Do you have questions about the possibility of suspending or extending that deadline or about a notice of default for failure to decide on time? If so, please contact Gerard van der Wende or with Fleur Huisman. 

You can find the link to the ruling here.

Developments in labour law land continue to follow in rapid succession. At the moment, among others, the bill modernising the non-competition clause, the Personnel Retention Act in the event of a crisis and, last but not least, the Clarification of Assessment of Employment Relationships and Legal Presumptions Act (VBAR Act) are still on the shelf. It seems that this push for revision has not come to an end for the time being. Indeed, Minister Van Hijum has announced that a bill will be introduced in 2025 introducing a maximum period of 36 months for temporary work. After this period, the hiring organisation must make the temporary worker an offer of employment with an open-ended employment contract. This aligns with the chain provision for fixed-term employment contracts.  

This intention for a new policy is based on advice from the Landsadvocaat. Briefly, he gave the minister three possible policy variants: 

1.    Setting a hard maximum time limit in law;
2.    Working with an open standard in the law;
3.    A rebuttable presumption of law.

The minister chose option 1, not so much because it was the best option, but the least bad. One of the reasons why option 2 or 3 was not chosen is that in that situation, the employee would still have to go to court.

The underlying objective is to bring Dutch legislation in line with the European Temporary Agency Workers Directive. It has always been the intention that deployment should be temporary, however, Dutch legislation does not sufficiently guarantee this and the courts can hardly act against any abuse. The aim is therefore to ensure legal equality and certainty, while maintaining sufficient flexibility to use temporary workers. 

What does this mean for temporary employment agencies?

Although there is no final bill yet, for now it is especially important to keep monitoring developments closely. A point that comes to mind here is how this will be shaped in the light of Section 9a(2) Waadi. Will the hirer still have to pay a fee to the temporary employment agency when the temporary worker starts working for the hirer, even if the hirer is obliged to make the temporary worker an offer of permanent employment after 36 months?

These are all questions that come to mind, but the cabinet seems determined to go down this road and to ignore criticism from the ABU and NBBU. 

If you would like advice on this, please contact Dennis Oud, Elke Hofman-Bijvank, Tessa Sipkema or Tim van Riel.