Practical Insights into the New Dutch Policy on Self-Reporting and Cooperation in Criminal Investigations

1. Background

On 22 November 2024, the DPPO released a new policy outlining the framework for self-reporting and cooperation by legal entities involved in potential criminal offences. This move aligns the Netherlands with practices followed by other jurisdictions, such as the United States¹, the United Kingdom², Germany_³, Canada⁴, France⁵, Australia⁶ and addresses recommendations made by the OECD Anti-Bribery Working Group. Specifically, the OECD has urged the Netherlands to establish clear policies and guidelines on self-reporting, detailing the procedures for making such reports, the level of cooperation expected and how self-reporting will be considered in enforcement and sanctioning decisions, particularly in foreign bribery cases.⁷

Recently, in the Netherlands, the Minister of Justice and Security and the Minister of Legal Protection emphasized (in a public letter to the House of Representatives) the importance of self-reporting and cooperation, highlighting that these actions would greatly influence the tackling of complex criminal investigations in an efficient and effective manner.⁸ While the new policy reiterates this encouragement, it goes further by providing clearer guidance and detailing the conditions under which companies may qualify for tangible benefits, such as reduced fines. This policy marks a significant step toward increased clarity in the Dutch enforcement landscape, offering companies a framework to navigate these complex decisions. 

2. Fine Reduction for Self-Reporting and Cooperation

The DPPO policy introduces a potential fine reduction of up to 50%, divided equally between self-reporting and cooperation.

• Self-reporting: Legal entities that voluntarily and promptly self-report potential criminal offences may qualify for a 25% reduction, provided the disclosure is complete, timely, and presented in a clear, structured manner. To meet this standard, organizations must include all relevant evidence and disclose all known offences within their sphere, including the individuals and assets involved.
• Cooperation: An additional 25% reduction may be granted for full cooperation during investigations. Cooperation includes proactively providing evidence, ensuring employee availability for interviews, and preventing interference with evidence or witnesses. Companies must adopt a transparent approach, including making data accessible in a structured and searchable format, and facilitating access to third-party-held documents where necessary.

In that respect, it is important to note the limitations of the policy, in particular:

• Only Organizations Are Eligible: Fine reductions are explicitly limited to legal entities and do not extend to individuals involved in the misconduct.
• No Entitlement to Reduction: Self-reporting and cooperating organizations are not automatically entitled to a fine reduction. The decision lies entirely with the DPPO’s discretion, which is exercised on a case-by-case basis.
• Fine Reduction Is Not Binary: The DPPO may grant a partial fine reduction below the maximum threshold of 50% (or its components of 25% for self-reporting and 25% for cooperation).

Practical Considerations for Deciding Whether to Self-Report or Cooperate

Making the decision to self-report or cooperate with the DPPO is complex and highly strategic. Organizations should carefully evaluate various considerations to make an informed choice. Below are some practical considerations of relevance:

3. The Role of Self-Investigation in Cooperation with the DPPO

The DPPO values self-investigations as a critical part of cooperation, promoting transparency and accountability. While they do not directly guarantee fine reductions, effective self-investigations may result in discounts of up to 25%.

Key principles for effective self-investigation:

1. Truth-Telling: Provide meaningful insights and uncover key facts.
2. Respect Victims: Uphold victims’ rights and address compensation claims.
3. Integrity: Ensure independence, expertise, compliance and evidence transparency.
4. Proactive Engagement: Share investigation scope, updates and findings with the DPPO.
5. No Impediments: Avoid withholding evidence or interfering with justice.

A well-executed self-investigation demonstrates accountability and strengthens cooperation with the DPPO.

By systematically analyzing such considerations, companies can adopt a practical, informed, and tailored approach to deciding whether to self-report and cooperate, ensuring alignment with their strategic objectives and risk tolerance.

4. Exploratory discussion

The DPPO guidelines introduce an innovative feature: legal entities can now engage in exploratory discussions with the DPPO before committing to self-reporting or cooperation in a criminal investigation. These discussions allow organizations to assess their case without making binding commitments.

Key Features:

1. Pre-Reporting and Pre-Cooperation Consultations: These consultations help legal entities determine whether their case might fall under the guidelines and understand the potential benefits of self-reporting or cooperating with enforcement authorities.
2. Anonymity and Confidentiality: Consultations can be conducted anonymously, enabling companies to preserve confidentiality while gaining insight into how their case may be viewed. Information shared during these discussions cannot be used against the company if the guidelines are deemed inapplicable.

By formalizing what were previously informal consultations, the DPPO demonstrates a practical and transparent approach. This mechanism offers organizations a protected and practical way to explore their options, promoting transparency and collaboration with enforcement authorities while reducing uncertainties associated with corporate misconduct investigations.

5. Legal Privilege

The DPPO respects companies' right to claim privilege during self-reporting and cooperation in criminal investigations. However, the policy emphasizes:

1. Justified Use of Privilege: While the right to privilege is acknowledged, excessive or unjustified claims may be viewed as non-cooperative.
2. Risk to Cooperation Assessment: If privilege claims result in the company providing information that is insufficiently verifiable or too limited to support self-reporting or cooperation, the DPPO may conclude that the company has not met the cooperation requirement.

Key Considerations:

• Claims over contemporaneous legal advice (e.g. advice at the time of the misconduct, which may demonstrate knowledge or intent) could be scrutinized more closely.
• Claims over post-detection advice (e.g. legal exposure assessments or self-reporting strategies) are less likely to affect the perception of cooperation.

Ultimately, while companies have the right to privilege, they bear the risk if this undermines the verifiability or sufficiency of the information provided to the DPPO.

Concluding remarks and takeaways

The DPPO's self-reporting and cooperation guidelines provide a valuable framework for companies seeking to mitigate potential criminal liability. By self-reporting and cooperating fully, organizations may secure significant reductions in fines and demonstrate a proactive approach to compliance. However, the policy leaves room for interpretation, with terms like "timely reporting" and "in the opinion of the DPPO" creating some ambiguity. Future updates to the policy may provide greater clarity and consistency in its application.

Additionally, the policy does not explicitly address the role of a company’s compliance program or its implementation as a mitigating factor. Key considerations such as disciplinary actions, remediation efforts and improvements to prevent recurrence are notably absent. Companies should remain mindful that these elements, though unaddressed in the policy, are often crucial to demonstrating a genuine commitment to ethical corporate behavior.

This lack of comprehensive guidance on compliance-related factors highlights the need for a holistic approach. Companies should align self-reporting and cooperation with broader efforts to establish and enforce robust compliance measures, emphasizing not just rectification of past misconduct but also prevention of future issues.

By adopting a strategic and comprehensive approach, companies can position themselves not only to benefit from the DPPO’s framework but also to strengthen their compliance culture and long-term resilience.