February 2021 – Protection of Whistleblowers
Whistleblower Protection Act
The guidelines of the EU Directive on the protection of whistleblowers have to be implemented in a new German “Act for Better Protection of Whistleblowers” (“Whistleblower Protection Act”).
The scope of application of the Act’s first draft (that for political reasons will not enter the legislative process and be passed) is – as expected – wide. According to the draft all employees as well as trainees, civil servants, judges, professional soldiers and persons in “employee-like” positions should be able to rely on the protection provided by the new Whistleblower Protection Act. These persons are protected by the statutory regulations if they have obtained information about violations in connection with their professional or official activities and pass on this information to the reporting channels provided for in the Whistleblower Protection Act. Relevant violations in this respect are, in particular, violations of all provisions of criminal law as well as provisions of the law on administrative offenses. Insofar, the draft contains an extension compared to the regulations of the EU Directive, which previously provided protection only for reports on violations of EU law.
In accordance with the EU Directive, the draft requires companies and departments with 50 or more employees to set up internal reporting channels. However, for companies and departments with up to 249 employees there will probably be a two-year transitional arrangement until the obligation to set up internal reporting channels takes effect. The internal hotlines must be accessible to all employees but can also be opened to third parties who are professionally connected with the companies or departments. The internal hotlines must be run by trained personnel and decisions on how to deal with the information provided must be made independently. The draft law explicitly states that companies and departments may use external lawyers as ombudspersons.