On September 10, 2026, the Nederlandse orde van advocaten (NOvA), the Dutch bar regulator, published a formal legislative advice urging lawmakers to withdraw the legal professional privilege provisions from the Tweede aanvullingswet Strafvordering, the Second Supplementary Act to the Netherlands' new Code of Criminal Procedure. NOvA warns that the bill fundamentally reshapes the verschoningsrecht (professional privilege) by handing the public prosecutor a leading role in handling privileged data and reducing the investigating judge (rechter-commissaris) to a residual function.
The call targets a draft supplementary bill that departs from the regime the Senate (Eerste Kamer) already adopted on February 24, 2026 in the Eerste vaststellingswet, the First Establishment Act for the new Code of Criminal Procedure. That act, prepared over years, explicitly entrenched professional privilege and the central role of the investigating judge. The NOvA advice and cover letter to the Minister and State Secretary of Justice and Security are dated September 10, 2026.
What does the bill change for legal professional privilege?
Under the proposed Tweede aanvullingswet, the public prosecutor (officier van justitie) gains a major role in reviewing potentially privileged material, while the rechter-commissaris is pushed back to a so-called "restfunctie" (residual function). In practice, investigation services and the Public Prosecution Service (Openbaar Ministerie, OM) would access large volumes of seized data themselves first, with the investigating judge involved only at a later stage.
NOvA reads this as a direct erosion of privilege. It stresses that the OM, as a party to the proceedings opposing the suspect, must never gain sight of privileged information, and that past practice shows errors and negligence in handling confidential data are "not unthinkable." The bar argues that filtering privileged material must happen under the authority of an independent judge, not the prosecution.
Why does NOvA say the rollback contradicts existing law?
The bill clashes with two anchors of the current privilege regime. First, the Eerste vaststellingswet adopted by the Senate on February 24, 2026 deliberately enshrined privilege and the steering role of the rechter-commissaris. NOvA calls on the government and parliament to respect that earlier, hard-won arrangement rather than reverse it through a supplementary act.
Second, the Hoge Raad confirmed the need for procedural safeguards in its prejudicial ruling of March 12, 2024 (ECLI:NL:HR:2024:375). The Supreme Court underscored the rechter-commissaris's directing role in filtering potentially privileged data and stressed that sufficient capacity and resources must be made available. NOvA argues the ruling points toward strengthening the safeguards, not dismantling them.
| Milestone | Date | Position on privilege and the investigating judge |
|---|---|---|
| Hoge Raad prejudicial ruling (ECLI:NL:HR:2024:375) | March 12, 2024 | Confirms procedural safeguards and the steering role of the rechter-commissaris; calls for adequate capacity |
| Senate adopts the Eerste vaststellingswet | February 24, 2026 | Entrenches professional privilege and the central role of the investigating judge |
| NOvA legislative advice on the Tweede aanvullingswet | September 10, 2026 | Demands withdrawal of the privilege rollback to preserve the rechter-commissaris's role |
Who is affected, and what should they do?
The development matters to every Dutch advocaat and to the firms that anchor criminal-defense and white-collar practice (De Brauw, NautaDutilh, Loyens and Loeff, Houthoff), plus in-house counsel and compliance teams handling corporate investigations and criminal enforcement in the Netherlands. Notaries, as functional privilege holders, are equally exposed: the Koninklijke Notariële Beroepsorganisatie (KNB) endorsed NOvA's call unanimously.
For now, nothing is binding: the Tweede aanvullingswet remains a draft and the privilege rollback has not entered into force. But a fundamental course change is on the table, and the timeline above shows how quickly the consensus can move. Counsel should track the bill's parliamentary path, brief investigation and enforcement teams on the possible end of judge-led filtering, and review internal protocols for handling seized digital data before the rules shift.
What alternatives does NOvA propose?
The legislator justifies the rollback mainly by execution problems in handling bulky digital datasets. NOvA acknowledges the practical strain but says workable alternatives have been on the table for years and were insufficiently explored before opting for a principled course change.
In its advice, NOvA proposes automated filtering on registered lawyer email addresses, mirroring the system already used for advocate phone numbers, additional filtering under the rechter-commissaris's responsibility, a faster track to release plainly non-sensitive data to investigators, and concentration of expertise at a specialized court for filter-procedure complaints. The common thread is that an independent judge, not the prosecution, keeps control over the assessment of privileged information.
Continuous, per-jurisdiction real-time monitoring surfaces this kind of change the moment it publishes, before a draft becomes binding law.
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For practitioners, the immediate steps are concrete:
- Verify whether your matters touch Dutch criminal investigations or seized-data handling where privilege could be claimed.
- Watch the Tweede aanvullingswet's progress through the Council of State advice and the Tweede Kamer, and note any entry-into-force date.
- Brief investigation, enforcement, and compliance teams on the potential loss of judge-led filtering and the NOvA alternatives.
The privilege file is not settled. NOvA, the Hoge Raad, and the Senate's own First Establishment Act all point one way, and the Second Supplementary Act now points the other. Obsidian will keep tracking the Dutch criminal-procedure recodification as it moves.
