Adoption of the Whistleblower Protection Act has entered into force

Background

The Whistleblower Protection Act implements rather late the EU Whistleblowing Directive, the Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (europa.eu) into German law. This is intended to enable whistleblowers in companies and public authorities to point out malpractices and breaches of the law by setting up internal and external reporting offices. After a mediation process the representatives of the Bundestag and Bundesrat were able to agree on a compromise of the HinSchG, which has now been promulgated on 2 June 2023.

The German Whistleblower Protection Act summarised:

• Companies and organisations with 50 or more employees are obliged to establish and operate whistleblowing systems. However, employers with between 50 and 249 employees, an implementation period until the 17th December 2023 is given. Employers with 250 and more employees will have to implement such system already until 2 July 2023.
• Whistleblowers must be given the opportunity to provide information orally, in writing or in person. Anonymous indications should also be followed up, even if there is no legal obligation to do so.
• Whistleblowers should prefer to report to an internal reporting office if “effective internal action can be taken against the violation” and there is no fear of reprisals.
• Information about violations only falls within the scope of the act if it relates to the employer or another entity with which the whistleblower had professional contact.
• Subsequently, the internally established reporting office must acknowledge receipt of the indication within 7 days and after 3 months also inform the whistleblower about the measures taken.
• In addition, external reporting offices are set up by the Federal Office of Justice and, if necessary, also by the Federal States, to which the whistleblower can also turn despite the preference given to the internal reporting office in the law.
• The fine range for violations of the obligations arising from the Act is up to EUR 50,000.00.

Co-determination in the introduction of the whistleblower system

The implementation of whistleblower system and the establishment of internal reporting offices in companies with a works council is subject to co-determination. Correspondingly, appropriate works agreements must be negotiated and concluded in a timely manner with regards to the co-determined contents.