Whistleblower Directive: Ready for Implementation in Austria

Jul 29, 2022 Benn-Ibler Rechtsanwälte

The Whistleblower Directive (2019/1937/EU) is being implemented in Austria. Currently, a draft bill, the Whistleblower Protection Act (HinweisgeberInnenschutzgesetz, HSchG) is available. The final decision is expected in autumn, the purpose of the Act being to protect whistleblowers.

Essentially, the draft requires legal persons under public law and companies with more than 50 employees to establish an internal system for reporting information in the areas of public procurement, environmental protection, traffic safety, consumer protection, antitrust violations, corruption, data protection, etc. Such an internal unit may be outsourced, e.g. to law firms. However, it must be ensured that such internal units possess sufficient financial and human resources to perform their tasks, and that they are safe and can ensure the confidentiality of whistleblowers' identities. In addition, comprehensive documentation requirements and deadlines must be met.

Whistleblowers are only granted protection if their information is provided to an internal or external body (such as authorities), whereby internal bodies are to be given preference. If information is provided to the media, this may also lead to whistleblower protection under certain limited conditions. Only those persons who have obtained information concerning violations of the law by virtue of their professional affiliation are protected. There need not necessarily be any contractual connections. Employees, applicants, board members, suppliers, and shareholders are protected.

Whistleblowers are protected by the HSchG from retaliatory measures insofar as such measures do not become legally effective. The draft contains a representative list of retaliatory measures including dismissals, transfers, denial of promotion, and disciplinary measures. In addition, whistleblowers are entitled to compensation for pecuniary loss as well as for any personal insult suffered.

Administrative fines of up to EUR 40,000 may be imposed for, among other violations

• putting pressure on whistleblowers
• retaliation
• violating the protection of confidentiality
• knowingly providing false or misleading information.

The draft’s explanatory remarks also explicitly state that the failure to set up such an internal unit is not punishable by law. Nevertheless, every company should have a strong self-interest in setting up such a system, as grievances can be detected and eliminated immediately and without public attention.

Internal units must be established within 6 months of entry of the Directive into force; companies with fewer than 250 employees are given time until 18 December 2023 to do so.

210/ME - XXVII. GP