Due to the EU-directive 2019/1937 for protection of whistle-blowers, the member states were required to implement corresponding provisions into their national law until the 17th of December 2021. Germany among many other member states has not complied yet. As in the last legislative period the necessary majority for the national transposition act couldn’t be reached, it seems likely to happen in the current one.
The government has passed a bill which will soon be decided upon in Parliament. Its key points are the extension of protection not only to whistle-blowers reporting violations of European law but also violation of national law. If some sort of repression in relation to the employment (e.g., dismissal) occurs after the person concerned informed about grievance, it will be presumed that it happened because of the whistleblowing, which is prohibited. In addition, employers with at least 50 employees must provide internal systems for employment related individuals, i.e., employees and applicants, to be able to inform about grievance. Employers with less than 250 employees have time to do so until the 17th of December 2023.
Especially NGO’s and lawyers criticize the bill. They say it fails to provide a comprehensive protection. Reports of misconduct that might not be illegal but scandalous and of public interest nonetheless, e.g., grievance in the care sector or far-right extremist group chats in the police, are not covered. It also lacks 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 one cannot do so anonymously.
However, as the EU has initiated an infringement procedure against Germany and as there seems to be the necessary majority in Parliament, an enactment of this bill in Q3 or Q4 2022 likely.
Key Action Points for Human Resources and In-house Counsel
- In light of upcoming legislation, it is recommended to look into the establishment of an internal reporting system. It is also possible to use external providers for this purpose.