FAQ Legal Status

In Germany, there is no comprehensive legal regulation for whistleblowing at the moment, and the legal admissibility of whistleblowing is difficult if not impossible to judge in advance.

By the end of 2021 at the latest, the German legislator must transpose the Directive 2019/1937 of the European Union for the protection of persons who report breaches of Union law in their working environment. The legal situation will change considerably as a result of this transposition.

Our experts will be available to you for further information, presentations, and legal opinions.

1. Is whistleblowing clearly regulated in Germany?

No. In contrast to other countries, Germany has not passed any laws up to now which clearly regulate whistleblowing in all areas. Instead, there are specific laws and acts for special areas of law, and a large number of court decisions in individual cases. Therefore, the legal admissibility of whistleblowing is difficult if not impossible to judge in advance.

2. What negative consequences may whistleblowers have to expect?

What consequences whistleblowers will have to expect depends strongly on the circumstances of the individual case. Whistleblowers who are employed as employees are threatened by several labour law measures from their employer, especially warnings and dismissals. Civil servants may be faced with disciplinary penalties leading up to the removal from civil service. If the whistleblower is accused of having committed a punishable offence, fines and, at worst, imprisonment may be impending. In addition, the whistleblower may be confronted with civil injunctive relief and compensation claims. From experience, actual consequences occur frequently, which do not necessarily have to be of a legal nature – even and especially when the whistleblower behaved in a completely correct manner from the legal perspective. This includes especially bullying by supervisors and colleagues, as well as considerable disadvantages for someone’s professional future, e.g. by „ostracising“ someone with respect to their career or putting them on an unofficial „black list“ within one’s own industry. In view of the considerable risks which the brave decision to blow the whistle entails, individual consulting and support are often indispensable.

3. When is whistleblowing admissible for employees?

As far as there are no special laws that regulate the admissibility of whistleblowing (see question 7), the admissibility of whistleblowing depends above all on the jurisdiction of the Federal Labour Court (BAG). In general, employees have a duty of loyalty and secrecy towards their employers which the BAG derives from § 241 (2) of the Civil Code (BGB) . If the employee violates his or her duty, they are threatened with labour law consequences right up to dismissal, see § 1 (2) Protection against Dismissal Act (KSchG). If this is the result of whistleblowing will be determined by BAG predominantly by weighing the fundamental rights of employee and employer. For the benefit of the employee, their freedom of expression enshrined in Art. 5 Basic Law (GG) and the right to enjoy civic rights according to Art. 2 (1) in connection with Art. 20 (3) GG  as recognised by the Federal Constitutional Court (BVerfG) are considered, the latter especially in the event of information given to the public prosecutor. The BAG, however, is traditionally sceptical towards whistleblowing and has developed a number of criteria according to which whistleblowing constitutes a breach of duty on the part of the employee. The most important ones of these criteria are presented below (not exhaustive):

I. Priority of internal clarification

As a rule, whistleblowers must first turn to an internal body in the company before they may pass their reports on to public authorities or the media, e.g. turn to the employer directly, to a superior or a compliance department. Only in exceptional circumstances may internal clarification be considered unacceptable according to the legislation of the BAG, especially when the employer is personally involved in criminal offences or tolerates them, when the whistleblower is in concrete danger of criminal prosecution, or when particularly serious crimes are involved. In most cases, the whistleblower shall turn to internal bodies first, according to the view of the BAG, in order to seek purely internal relief – and of course, they will risk becoming the target of retaliation this way. Even if, in an individual case, there are circumstances that justify external whistleblowing, this only applies to reports to the competent authorities, but not to the media.

II. Good faith on the part of the whistleblower

The whistleblower must have acted in good faith, that means, at the time of his or her hint they must not have provided false statements knowingly or carelessly. For whistleblowers, the advantage of this case law lies in the fact that the admissibility of whistleblowing is not made dependent on whether the accusations can be proved beyond any doubt afterwards or not. The disadvantage, of course, lies in the fact that it ultimately depends upon the personal evaluation of the Court whether it considers reports, which are accidentally wrong, careless or not under the given circumstances.

III. Honest and upright motives

According to the case law on the basis of the BAG, the motives which moved the whistleblower to give a particular hint are considered with a special emphasis when assessing the admissibility of whistleblowing. If the Court considers the motives to be honest and upright, in particular, when the whistleblower’s interest is predominantly to expose violations of the law, he or she is to be protected against negative labour law consequences. If, however, the Court considers the motives to be egotistical and not worthy of protection, e.g. because it assumes that the whistleblower acted out of revenge towards his or her superior, it will refuse protection. For whistleblowers, this examination of their motives, which is legally uncertain to a high degree, will prove especially dangerous when they have fallen out with their employer while attempting to clarify matters internally, and the employer puts this fact forward against them in the lawsuit regarding protection against unfair dismissal.

4. When is whistleblowing admissible for civil servants?

Similar to the legal situation of employees (see question 3), there are no comprehensive legal regulations on whistleblowing for civil servants in Germany either, so that the case law falls back on general principles in most cases. The central issue is the duty of loyalty and secrecy towards the respective employer according to § 67 (1) German Law on Federal Public Servants (BBG)  in the case of Federal public servants, or § 37 (1) Civil Servants Status Act (BeamtStG)  in the case of civil servants of the Federal states. Whistleblowers who are civil servants are also entitled to freedom of expression from Art. 5 Basic Law (GG)  and the right to enjoy their civic rights according to Art. (1) in conjunction with Art. 20 (3) GG. Even though the case law in the field of the Civil Servants Law is less differentiated than in Labour Law and is fraught with considerable legal uncertainties, some guidelines have already emerged in the past:

I. Multi-step model

Because of the special significance of the principle of going through the official channels in the German Civil Servants Law (see § 125 (1) BBG  or  § 36 (2) BeamtStG) German courts traditionally assume a strict priority of internal clarification and only allow an exception to this in very few cases. To turn to external authorities, like the public prosecutors’ offices, should be absolutely the last resort for whistleblowers according to the case law of the Federal Administrative Court (BVerwG), after having exhausted all internal remedies, unless there are particularly severe misconduct. Direct reporting to the media has only been considered admissible in the event of severe violations against Germany’s constitutional order. Unless there are no special regulations that apply, like e.g. in the area of the fight against corruption (see question 7), this makes it particularly difficult for civil servants to turn to trustworthy addressees outside the administration.

II. The whistleblower acting in good faith

Like in labour law, case law assumes as a matter of principle that the whistleblowers must have acted in good faith at the time they handed in their reports, and that they may not have made any false statements neither knowingly nor carelessly. However, so far it has been anything but clarified where the limit between careless and only negligently false statements lies and what significance the whistleblower’s motives have in Civil Servants Law.

5. What criminal law consequences may whistleblowers be threatened with?

Depending on the facts and circumstances, whistleblowers may be confronted with a number of accusations of criminal relevance. To be sure, many criminal-law rules only cover false statements made knowingly and do not actually concern whistleblowers acting in good faith. Apart from the fact that this does not apply to all criminal accusations without exception, it must be observed, however, that even criminal proceedings that have been initiated wrongly can have considerable impacts on the whistleblower concerned. Besides, the question when justified whistleblowing constitutes a ground of justification under criminal law has not been consistently clarified in the German body of law yet.

The criminal offence of the violation of trade secrets according to § 23 of the Trade Secrets Act (GeschGehG) is of particular relevance for whistleblowing cases. Accordingly, anybody disclosing a trade secret in order to promote their own or somebody else’s competitive advantage, in self-interest, for the benefit of a third party, or in this intention, and thereby causes harm to the owner of a company, will be punished with a term of imprisonment of up to three years or with a fine. The term ‚trade secret‘ covers principally all secret information of economic value which is the object of non-disclosure measures and in the secrecy of which there is a legitimate interest, § 2 No. 1 GeschGehG. Whether this also includes „illegal trade secrets“, and in particular, information about illegal acts, has not been clarified by any German courts yet.

According to § 187 of the Criminal Code (StGB), whoever despite knowing better asserts or disseminates an untrue fact which is suitable to degrade another person or negatively affect public opinion about that person or endanger said person’s creditworthiness, will incur a penalty of imprisonment of up to five years or a fine.

If anybody reports an offence to the police, despite knowing better, in order to bring about official proceedings, especially criminal proceedings, this person incurs a penalty of imprisonment of up to five years or a fine, § 164 StGB.

For malicious gossip according to § 186 StGB anyone can incur a penalty when disseminating disparaging or degrading facts, even when the assertion or dissemination is not wrong, but cannot proved to be true.

Finally, insult according to § 185 StGB can also constitute criminal liability,

What has remained unclarified to a large extent so far is the question under which conditions whistleblowing can constitute a justification in criminal law. As far as criminal liability according to § 23 GeschGehG  is concerned, justification according to § 5 No. 2 GeschGehG is possible, according to which trade secrets may be disclosed if this occurs or is conducive to uncover an illegal act, professional or other misconduct, in order to protect the general public interest. In the remaining criminal law, a necessity as justification according to § 34 StGB and the safeguarding of legitimate interests according to § 193 StGB come into consideration. Under which precise prerequisites whistleblowers can rely on a justification on the basis of these and other legal regulations has not been answered on a generally valid basis yet.

6. What compensation claims may whistleblowers be faced with?

Whistleblowers for whom proof has been furnished that they provided information in an inadmissible manner and caused their employer or principal damage as a result of this, can be made financially liable. For employees, liability for damages can result especially from the accusation of violating their employment duties, see (1) and § 241 (2) of the Civil Code (BGB). The same applies to civil servants, see § 75 of the German Law on Federal Public Servants (BBG) or § 48 of the Civil Servants Status Act (BeamtStG). Also, tortious claims from third parties are possible, especially when a crime has been proved see § 823 (2) BGB. If the whistleblower discloses a trade secret in an illegal manner, a claim for compensation according to § 10 of the Trade Secret Act (GeschGehG) may incur. In accordance with general principles (see questions 3 and 4), claims come into question especially when false statements were made knowingly or carelessly. However, the prerequisite will always be that the claimant can prove and quantify a specific loss.

7. Are there special rules and addresses for whistleblowers in some areas?

Even though the German law has not known any general rules and protection standards for whistleblowers up to now, special whistleblowing standards and addressees were created in the last few years – mostly at a European initiative. Some of the more relevant ones are briefly explained below:

According to § 67 (2) S. 1 No. 3 German Law on Federal Public Servants (BBG) or § 37 (2) S. 1 No. 3 Civil Servants Status Act (BeamtStG) civil servants have the possibility to directly report a suspicion of criminal acts related to corruption to the competent highest administrative authority, a prosecution authority or a specifically determined other authority or external entity. In line with these requirements, whistleblowing bodies and ombudspersons have been introduced in many areas of public service for criminal acts related to corruption.

In the private sector of the economy, whistleblowers can turn to their internal works council with complaints and suggestions, see § 85 Works Constitution Act (BetrVG). In offices of the public sector, the same applies accordingly for the staff council, see, for example, § 68 (1) No. 361 (1) No. 3 and 91 (2) of the Law on Staff Committees in the Public Sector (BPersVG). The prerequisite for a complaint is, however, that the whistleblower is affected by the infringement of the law individually, that means, in his or her own rights. Also, works and staff councils, as a rule, do not have sufficient possibilities to investigate legal violations and misconduct independently whilst maintaining the whistleblower’s confidentiality.

The General Act on Equal Treatment (AGG) offers further possibilities of filing complaints, as far as the substance of the whistleblowing is discrimination on the grounds of race or ethnic origin, sex, religion, ideology, disability, age or sexual identity. According to § 13 and 27 AGG employees can turn to the respective internal complaints office and the antidiscrimination office of the Federal government, and they are entitled to file a claim if they have suffered disadvantages according to § 16 and 22 AGG in contrast to general labour law (see question 8).

In the public service, there are sometimes special external whistleblowing rights and addressees for certain groups of persons. According to § 7 of the German Bundestag Act establishing the Parliamentary Commissioner for the Armed Forces (WehrBBtG) military personnel can turn directly to the Parliamentary Commissioner for the Armed Forces and may not be put at a disadvantage for doing so. According to § 8 (1) Act on the Control of the Intelligence Services of the Federal Government (PKGrG) members of the intelligence services are allowed to turn directly to the Parliamentary Control Committee in service matters (however, not in their own interest or in the interest of other members of these authorities).

Even without specific legal obligations, many companies, and above all, bigger companies have established internal whistleblowing bodies as part of their compliance organisation in the last few years, often by appointing lawyers as ombudspersons. Also, whistleblowers have more and more anonymous reporting channels available to them which are based on online services. It must be observed, however, that legal requirements and protection standards that go across all industries have been missing for these whistleblowing bodies so far, and that internal whistleblowing bodies in companies are always bound by the interests of the employer.

8. How can whistleblowers defend themselves legally against bullying and other disadvantages?

Theoretically, whistleblowers in Germany can resort to the courts of law to defend themselves against any form of unjustified disadvantage caused by their employers or principals and demand that they cease and desist from causing the disadvantage or reverse it. For employees, this claim results from the prohibition of victimisation of § 612a of the Civil Code (BGB), and civil servants can invoke their employer’s duty of care, see § 79 German Law on Federal Public Servants (BBG) or § 45 Civil Servants Status Act (BeamtStG). In practice, the successful assertion of this claim is fraught with many obstacles and therefore very rare in Germany. On the one hand, whistleblowers have to prove that they complied with the requirements of the legislation (which are difficult to foresee). On the other hand, they bear the burden of proof for the fact that the disadvantage was caused in retaliation to their whistleblowing. If, for example, employers or superiors maintain that the real reason for a measure was allegedly the whistleblower’s poor work performance, the proof to the contrary will be anything but easy.

9. Can whistleblowers rely on the European Whistleblowing Directive?

For the time being, no. The Whistleblowing Directive of the European Union (2019/1937/EU) is not immediately applicable in Germany, but must be transposed into German law by the legislator before 17 December 2021. Further information on the European Whistleblowing Directive, you will find here.

10. Where do I get information for my specific case?

If you have become a whistleblower yourself or if you are toying with the idea of going ahead with whistleblowing, individual legal consulting will in most cases be indispensable. The overview presented here can and will not replace legal consulting by a qualified lawyer, it is merely intended to give you some first orientation. Should you have any further questions, the Consulting Team of Whistleblower-Netzwerk will also be available to you personally.

To the FAQ Whistleblowing Directive

Follow us!