GER: Whistleblower Protection Act Poised to Go into Effect

Jan 3, 2023 Benn-Ibler Rechtsanwälte

The German Bundestag has passed the long-awaited new Whistleblower Protection Act (Hinweisgeberschutzgesetz) containing a number of significant amendments. The law is intended to improve the protection of whistleblowers against possible harassment or dismissal when they report misconduct in companies. The law now also addresses anonymous whistleblowing concerning animal welfare issues as well as threats to the constitution. 

In Germany, the protection of whistleblowers has so far been shaped primarily by case law. This new act for better protection of whistleblowers now transposes Directive (EU) 2019/1937 into German law. The deadline for implementation had already expired in December 2021. Even with the current Bundestag decision, the law is not in force yet as it requires the consent the Bundesrat.

Whistleblowers play an important role in uncovering and sanctioning wrongdoing. However, they are often put at a disadvantage as a result of their reporting or disclosing wrongdoing. The aim of the law is therefore to eliminate such disadvantages and to give whistleblowers the greatest possible legal protection. The law wants to channel whistleblowing in a well-regulated manner. In particular, whistleblowing should first be dealt within an organization or business.

Central to the law is the establishment of reporting systems. Companies and public bodies with 50 or more employees are required to set up secure internal reporting systems. Companies with up to 249 employees will be given until 17 December 2023 to implement such systems. Also, a reporting office will be set up externally at the Federal Office of Justice.

To protect whistleblowers from retaliation or discrimination, the law contains a reversal of the burden of proof. Should whistleblowers suffer professional disadvantages, it will be presumed that such disadvantages are reprisals. Claims for damages, if any, are also regulated by this new legislation.

Bundestag Printed Paper 20/3442 (19.09.2022)