Germany’s Whistleblower Protection Act Draft Update

On 27 July 2022, the federal cabinet adopted the draft for a Whistleblower Protection Act (HinSchG). This draft is intended to implement Directive (EU) 2019/1937 of the European Parliament and the council of 23 October 2019 on the protection of persons who report infringements of European Union law (HinSch-RL). Originally, the EU member states were given an implementation deadline of 17 December 2021. Due to the failure to transpose the HinSch-RL into national law on schedule, the EU Commission initiated infringement proceedings against Germany and other EU member states in January 2022.

Even though the HinSchG has not yet been passed by the Bundestag and Bundesrat, employers are already encouraged to prepare for the establishment of the planned whistleblower protection systems in their companies. It is expected that the law will come into force in the fall of 2022 and will be followed by only a short transition period. This will require companies to act quickly with regard to the establishment of internal whistleblower protection systems. The core of these systems will be the establishment of so-called internal reporting offices.

According to the draft, the following points will be of particular importance and should be taken into account (the legal details refer to the draft of 27 July 2022):

Scope of Application

On personal terms there is protection for (sec. 1 HinSchG):

• All persons who obtain information about violations or potential violations in connection with their professional activity and report or disclose such information in the form provided for under this act, or so-called whistleblowers;

• Persons who are the subject of such reports/disclosures or are otherwise affected by them; and

• These include employees within the meaning of Article 45(1) TFEU (including civil servants); self-employed persons within the meaning of Article 49 TFEU; shareholders; persons who are members of the administrative, management, or supervisory bodies of companies (including nonexecutive members); volunteers and trainees; and persons working under the supervision and management of contractors and suppliers.

In factual terms, reports/disclosures are protected that primarily concern the following areas (sec. 2 HinSchG):

• Violations of national legal provisions, with the stipulation that these are punishable by law;

• Violations of national legal provisions subject to fines, conceding these serve the protection of life, limb, or health, and the protection of the rights of employees or their representative bodies;

• With reference to the catalog of regulations in the HinSch-RL, violations of federal and state regulations and legal acts of the European Union and the European Atomic Energy Community from certain areas (in particular, public procurement and public health, financial services, financial products and financial markets, transport safety, radiation protection and nuclear safety, animal health and welfare, consumer protection, protection of privacy and personal data, product safety and conformity, prevention of money laundering and terrorist financing, environmental protection, food and feed safety, and…