Germany Update: The new Whistleblower Protection Act will come into force on 2 July 2023

Review
The EU Whistleblower Directive (EU Directive 2019/1937 of 23 October 2019 on the protection of persons reporting breaches of Union law) should actually have been transposed into national law as early as 17 December 2021. The German legislator allowed this deadline to pass in the last legislative period (see blog post of February 09, 2022). After infringement proceedings against Germany had been initiated by the European Commission in the meantime, a draft bill for a German whistleblower protection law was first presented on 13 April 2022 (see blog post of 25 April 2022). This was then passed by the Bundestag in a slightly amended version on 16 December 2022. However, the Federal Council refused to approve the law (see blog post of 12 February 2023).

Now the time has finally come: With the consent of the Bundesrat, the Bundestag passed the Whistleblower Protection Act – HinSchG on 12 May 2023 – almost 1.5 years after the implementation deadline. It will come into force as early as July 2, 2023.

The HinSchG in a nutshell
The aim of the HinSchG is to fully protect natural persons who have obtained information about criminal offences or misconduct in a professional context and report or disclose it to a statutory reporting office from reprisals if they have justified their reporting.

In principle, all employers with at least 50 employees are obliged to set up internal reporting offices. For private employers with usually 50 to 249 employees who are not obliged to set up a reporting office regardless of their number of employees (Section 12 (3) HinSchG), a transitional period until 17 December 2023 is granted for the establishment of internal reporting offices. All other employers – i.e. in particular public employers and companies with more than 250 employees – must set up and operate an internal reporting office in accordance with the requirements of the HinSchG from 2 July 2023. In addition, external reporting offices are to be provided by the state, among others.

Deviations from the legislative procedure
Contrary to what has been envisaged in the legislative process in the meantime, anonymous reporting channels are no longer mandatory. The HinSchG only provides that reports received anonymously must also be processed (§ 16 para. 1 old version).

Information on violations is only covered by the scope of the Act if it relates to the employer for whom the whistleblower works or has worked, or to another body with which the whistleblower is or has been in contact due to his or her professional activity (Section 3 (3)).

Whistleblowers still have the right to choose between internal and external reporting offices. However, employers should create incentives for the preferential use of internal reporting offices. This is particularly the case if effective action can be taken against the infringement internally (§ 7 para. 1, para. 3).

The reversal of the burden of proof in favour of the whistleblower has been retained, but must now also be asserted by the latter (§ 36 para. 2).

The planned fines for violations of whistleblower protection requirements have been revised slightly downwards. Failure to comply with the obligation to set up and operate internal reporting offices can be punished with a fine of up to 20,000 euros. However, this threat of a fine will not apply until December 1, 2023.

Result
Employers within the scope of the HinSchG should now take action as quickly as possible, provided they have not yet set up an internal reporting office. Even those who have already set up a reporting office should review their internal guidelines and specifications and, if necessary, improve them in order to comply with the requirements of the HinSchG. Responsible departments in the company must be trained promptly.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germany@transatlanticlaw.com

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