If employees or civil servants draw attention to criminal offenses or violations in their professional environment in the future, they should be comprehensively protected against reprisals such as dismissal, warnings, refusal of promotion, disciplinary proceedings or bullying.
This is what the draft of the Whistleblower Protection Act provides, which Federal Justice Minister Marco Buschmann (FDP) submitted to the departmental vote on Tuesday and which is available to the Handelsblatt.
The draft states: “Whistleblowers make an important contribution to uncovering and punishing abuses.” However, there have always been cases in the past in which they have been disadvantaged after reporting or disclosing violations. The aim is to ensure the protection of whistleblowers.
For example, cases are recorded in which corruption, money laundering or tax fraud are uncovered or violations of environmental protection or food safety regulations.
Actually, the law should have come into force around 100 days ago. This is what the underlying EU directive for the protection of whistleblowers envisaged. However, the previous government of Union and SPD could not agree on a common line, although a finished draft law was already available.
The traffic light from the SPD, Greens and FDP “inherited” the legislative project. Now Buschmann presented the draft.
The EU Commission had already initiated formal infringement proceedings against Germany because of the delay.
So far, there are no comprehensive legal regulations in Germany to protect whistleblowers. The area is characterized above all by the case law of the civil and labor courts. The well-known cases involved, for example, reporting abuses in nursing homes or uncovering food scandals.
In fact, whistleblowers can quickly uncover cases of fraud such as the diesel affair or the multi-billion dollar Wirecard scandal. So far, however, potential whistleblowers have often held back for fear of reprisals.
Comprehensive whistleblower protection is now to come. Not only for the private sector, but also for the entire public sector.
Specifically, companies that employ at least 50 people must set up internal reporting offices that whistleblowers can contact anonymously or confidentially if they want to draw attention to grievances.
The justification for the law states that whistleblower systems are already widespread in business today. According to this, almost 74 percent of companies with more than 250 employees already have corresponding reporting channels. However, only just under 44 percent of small and medium-sized companies recently had such a system.
In order to keep the costs for the economy low, the draft law provides for the possibility that the internal reporting office of corporations can be located centrally at the parent company. On the other hand, third parties may also commission the operation of the registration office, for example law firms. This should reduce the bureaucratic effort for medium-sized companies, for example.
possible to go public
However, whistleblowers can also turn to external reporting offices, for example if they mistrust their employer.
This external reporting office is to be set up at the Federal Office of Justice (BfJ) – as a kind of contact point for everyone. The authority should also serve as an internal registration office for the public sector. However, the federal states can also set up their own registration offices.
Whistleblowers may only address the public directly under strict conditions. This applies, for example, if danger is imminent or irreversible damage is imminent.
If the external reporting office has not taken the necessary measures within three months, disclosure to the public is also permitted. If the whistleblower follows these guidelines, he can count on full protection against reprisals. The reporting office must take action and investigate the allegation.
The ministry estimates the annual costs of operating the registration offices at around 200 million euros for business and around 220 million euros for administration.
The 111-page draft follows a broad understanding of whistleblower protection and goes beyond the EU requirements. The traffic light had already agreed on this in its coalition agreement.
Employees are not only protected if they uncover violations of EU law, but also if they report criminal offenses or significant violations of other regulations, the disclosure of which is in the public interest. The draft law refers to violated regulations that serve to protect “life, limb or health or the protection of the rights of employees” or, for example, the works council.
Here, the German economy could feel disadvantaged compared to countries that introduce whistleblower protection only for EU law – and thus create less bureaucratic burdens.
Compensation regulations for both sides
Whistleblower protection does not apply to information that relates to national security, defense-specific orders or classified information, for example, or information that is subject to medical or legal confidentiality.
The group of people who are considered whistleblowers is also broad. This would not only be employees, trainees and civil servants, but also judges, soldiers, employees of suppliers, contractors, self-employed, interns or shareholders.
“However, the protection only applies if the whistleblower can assume that the information reported is true,” says the explanatory memorandum to the law.
In order to prevent abuse, the draft law provides for two regulations on damages:
- If the whistleblower has to suffer reprisals, he can claim the damage caused as a result from the company or the authority.
- If it is an intentional or grossly negligent false report, the whistleblower is obliged to reimburse the damage that has occurred as a result.
The draft by the Ministry of Justice assumes that companies and authorities will benefit if grievances are primarily reported internally.
The idea behind this is that neither business nor administration want to accept that their own ranks chronically violate the law – especially since there is a risk of damage to reputation. With a post on Instagram, for example, the company or the authority would be directly pilloried.
As has been heard, the draft law should, if possible, be passed by the cabinet in June and then come into force in the autumn.
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