[Germany] New whistleblower protection legislation

As a result of EU-directive 2019/1937 for the protection of whistleblowers, EU member states were required to implement corresponding provisions into their national law by December 17, 2021. Germany is one of a number of member states that have not yet complied. In the last legislative period, the necessary majority for the national transposition act couldn’t be reached but it now seems likely to happen in the current period, Lexology reports.

The German government has passed a bill which will soon be decided upon in Parliament. Its key points are the extension of protection not only to whistleblowers reporting violations of European law but also any violation of national law. If any instance of repression in relation to the employment (e.g., dismissal) occurs after the person concerned spoke out about their grievance, it will be presumed that it happened because of whistleblowing, which is prohibited.

In addition, employers with at least 50 employees must reportedly provide internal systems for employment-related individuals, i.e., employees and applicants, to be able to inform about grievances. Employers with less than 250 employees have until December 17, 2023, to do so.

NGOs and lawyers have been particularly critical of the bill, saying it fails to provide comprehensive protection. Reports of misconduct that might not be illegal but are scandalous and of public interest nonetheless, e.g., a grievance in the care sector or far-right extremist group chats within the police service, are not covered. It is also said to lack adequate regulation for the public sector. The obligation to install internal report systems does not include opening them up to anonymous reporting. This is seen as counterproductive as the inhibition threshold for reporting a grievance increases if it cannot be done anonymously.

However, as the EU has initiated an infringement procedure against Germany and as there seems to be the necessary majority in Parliament, enactment of this bill in Q3 or Q4 2022 seems likely.

Recommendations for HR and in-house counsel

In light of upcoming legislation, Lexology recommends exploring the establishment of an internal reporting system. It is also possible to use external providers for this purpose.

As a result of EU-directive 2019/1937 for the protection of whistleblowers, EU member states were required to implement corresponding provisions into their national law by December 17, 2021. Germany is one of a number of member states that have not yet complied. In the last legislative period, the necessary majority for the national transposition act couldn’t be reached but it now seems likely to happen in the current period, Lexology reports.

The German government has passed a bill which will soon be decided upon in Parliament. Its key points are the extension of protection not only to whistleblowers reporting violations of European law but also any violation of national law. If any instance of repression in relation to the employment (e.g., dismissal) occurs after the person concerned spoke out about their grievance, it will be presumed that it happened because of whistleblowing, which is prohibited.

In addition, employers with at least 50 employees must reportedly provide internal systems for employment-related individuals, i.e., employees and applicants, to be able to inform about grievances. Employers with less than 250 employees have until December 17, 2023, to do so.

NGOs and lawyers have been particularly critical of the bill, saying it fails to provide comprehensive protection. Reports of misconduct that might not be illegal but are scandalous and of public interest nonetheless, e.g., a grievance in the care sector or far-right extremist group chats within the police service, are not covered. It is also said to lack adequate regulation for the public sector. The obligation to install internal report systems does not include opening them up to anonymous reporting. This is seen as counterproductive as the inhibition threshold for reporting a grievance increases if it cannot be done anonymously.

However, as the EU has initiated an infringement procedure against Germany and as there seems to be the necessary majority in Parliament, enactment of this bill in Q3 or Q4 2022 seems likely.

Recommendations for HR and in-house counsel

In light of upcoming legislation, Lexology recommends exploring the establishment of an internal reporting system. It is also possible to use external providers for this purpose.