The association “Die Familienunternehmer” spoke of the “old suffering” of German legislators, “almost compulsively falling into legislative over-fulfilment”. The ministry received a total of 45 statements from specialist groups and associations.
With the Whistleblower Protection Act, employees or civil servants are to be comprehensively protected against reprisals such as dismissal or warnings if they draw attention to criminal offenses or violations in their professional environment.
These can be cases of corruption, money laundering or tax fraud as well as violations of environmental protection or food safety regulations.
The background is an EU directive that should have been implemented into national law by the end of 2021. The Federal Minister of Justice at the time, Christine Lambrecht (SPD), presented a draft. However, this met with resistance from the Union as a coalition partner.
Because of the delay, the EU Commission has already initiated formal infringement proceedings against Germany.
As with the first draft, the stumbling block is the scope of the law. The guidelines from Brussels stipulate that whistleblowers should be protected from reprisals if they uncover violations of EU law.
No restriction to EU law
Buschmann has already included fewer facts in the draft law than his predecessor. However, the scope also includes the reporting of violations of specific national law.
Specifically, these are criminal offenses and fines if the violated regulations are aimed at protecting life, limb or health or at protecting the rights of employees or their representative bodies. There is also a list of “other violations”.
This is going too far for the economy. She asks for improvements. The Confederation of German Employers’ Associations (BDA) wrote in a statement: “It is in the interest of companies to detect and eliminate errors at an early stage. As a result, many companies already have opportunities to report grievances internally.”
Anyone who draws attention to criminal offenses or violations in the professional environment should be protected. These can be cases of corruption or violations of food safety.
(Photo: dpa)
However, an extension of the scope is not only superfluous “due to the existing regulations in Germany and well-balanced case law”, it also harbors “the risk of overloading”. There are already numerous provisions in national law which empower workers to report or disclose violations and then protect them.
The BDA refers, for example, to the Occupational Health and Safety Act, the Works Constitution Act and the ban on reprimands laid down in the Civil Code, as well as industry-specific regulations – such as the model form in the construction industry for reporting undeclared work to the financial control.
The Federation of German Industries (BDI) rejects “in principle an extension of the scope beyond the specifications of the directive”.
Right to choose between internal and external reporting
However, the German Association of Executives (ULA) criticizes the fact that the reporting of grievances “below the threshold of clear violations of the law” is exempt from whistleblower protection.
ULA President Roland Angst, Chairman of the Group Spokespersons’ Committee at Deutsche Telekom, says: “The draft falls short of the law on the protection of trade secrets.” This permits the disclosure of an illegal act or professional or “other misconduct” if this is in the public interest. This needs to be improved.
Specifically, the draft law stipulates that companies with more than 50 employees set up internal reporting offices that whistleblowers can contact if they want to draw attention to grievances. However, whistleblowers can also contact external reporting offices, such as the Federal Office of Justice (BfJ), or even go public.
Here, too, the economy does not hold back with criticism. Because the EU directive stipulates that the member states must ensure that reporting via internal channels is preferred to reporting via external channels.
The BDI insists that companies are first given the opportunity to investigate potential violations internally.
(Photo: imago images/image enclosure)
However, in the German draft there is only a “suggested provision”. The association “Die Familienunternehmer” demands: “A clearly defined chain of escalation is required, starting with the internal report – via an external report – to the ultima ratio: publicity.”
The BDI insists that companies are first given the opportunity to investigate potential violations internally, also in order to minimize the “risks resulting from the notification”.
A report threatens economic losses, competitive disadvantages and damage to the image, the BDA also states and warns that “incentives” for internal reporting must be created: “The company itself can primarily remedy a grievance quickly and effectively, and this is what counts a priority internal report.”
Unjustified protection against dismissal
Overall, the economy sees a risk of abuse. In companies, for example, colleagues could be “slandered”, which would permanently disrupt peace within the company.
The burden of proof regulation is also viewed critically: The draft therefore contains the presumption that discrimination suffered by a whistleblower after a report or disclosure in connection with his professional activity constitutes reprisals. This could give employees a form of protection against dismissal.
The BDA explains: If an employee learns that termination of his employment is pending or is being considered, there is a risk that he will report a circumstance before the notice of termination is given and then in the labor court proceedings will claim that the termination was only due to the notification he follows.
>> Also read: How whistleblowers should be protected in the future
The BDA warns: “The employer would then have to explain that this is not the case. In most cases, it will be difficult or impossible to prove this negative fact.”
However, there is still some praise from the economy. So it is right that in the future companies will be able to decide for themselves whether they want to allow anonymous reports.
The possibility provided for in the law of creating a common internal reporting office in groups was also welcomed. The BDA makes it clear: “Without central processing in the group, there would be a risk that the same facts would be treated differently by different group subsidiaries.”
Disappointment also at the DGB
However, Minister Buschmann was not able to please the trade unions either. The draft does not go far enough for the Confederation of German Trade Unions (DGB). First the deadline was missed, then an infringement procedure due to a lack of implementation was dismissed.
“Now the federal government is finally presenting a draft for a whistleblower protection law, but it is missing the opportunity to make real progress towards a culture of legality and integrity and thus real, efficient whistleblower protection,” said Micha Klapp, head of the legal department at DGB federal board, the Handelsblatt.
It is important for people who provide information that regulations are “legally clear, fair and practicable”. That doesn’t work with this design. Klapp demanded: “The coalition urgently needs to make improvements in order to properly implement the guidelines.” In doing so, they must avoid “breaks in the level of protection” for whistleblowers.
The anti-corruption organization Transparency Germany considers the draft a “fiasco”. Accordingly, all violations of the law and other misconduct, the reporting of which is in the public interest, should be recorded.
Even classified and national security information should not be exempted across the board. There are also calls to protect anonymous reports and to provide for an obligation to follow up on anonymous tips.
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