In October 2019, the European Union adopted Directive 2019/1937 on the protection of persons who report breaches of Union law in their working environment. The German legislator will have to transpose the Directive into national law by the end of 2021. Milestones and comments from politics, economy, and civil society on the transposition as well as our deliberations and demands for transposing this Directive you will find here: Advocacy.
Our experts are available to you for further information, presentations, and legal opinions.
1. As a whistleblower, can I rely on the Directive already now?
No. As a matter of principle, the Whistleblowing Directive must first be transposed into national law by the German legislator – like all other European Directives. The deadline for transposing it is 17 December 2021.
2. In what areas is whistleblowing protected by the Directive?
The Directive covers reports concerning violations of a large number of European legal acts and their national transposition provisions. In addition, reports regarding future violations are also covered as far as these are very probable, as well as reports regarding unlawful behaviour if this runs counter to the aim or the purpose of the provisions.
The fields of law covered include, among others:
- Public procurement, including the award of state concessions
- Internal market regulation, including competition law, state aid law and corporate tax law
- Regulation of the financial services sector, including the prevention of money laundering and terrorist financing
- Product, traffic and food safety
- Environment law
- Health law
- Consumer protection law
- Data protection law
Not covered are, among others:
- Matters of national security
- European labour protection law
- Classified documents
3. How are whistleblowers protected if they do not come under the Directive?
Most facts and circumstances of whistleblowing come under the competence of the German legislator without the European Union being able to set any direct requirements. The protection of whistleblowers according to German law is still highly deficient and uncertain. This is why Whistleblower-Netzwerk commits itself strongly to the German legislator passing a uniform whistleblower protection law when transposing the Directive, which also extends to national regulatory situations and therefore guarantees an equal level of protection to all whistleblowers.
5. What specific legal protection does the Whistleblowing Directive grant?
The Directive prohibits any kind of retaliation conducted against the whistleblower because of his whistleblowing.
This includes, among others:
- Dismissal, suspension, and non-extension of temporary work contracts
- Premature termination or rescission of a contract on goods and services
- Downgrading or refusal of a promotion
- Shift in duties, change of place or time of work, salary reduction
- Disciplinary measures, reprimands or other sanctions
- Coercion, intimidation, bullying or ostracising
- Reputation damage, especially in social media
- Putting the whistleblower on a „black list“ with the consequence that the whistleblower cannot find any other job or employment in the whole sector or the industry
- Psychiatric or medical referral
Against all these forms of retaliation, the whistleblower is entitled to his or her own defence. The burden of proof that a measure was not taken because of the whistleblowing but for a different, legitimate reason, lies with the employer exclusively.
In addition, the whistleblower is to be paid damages to compensate for material and non-material loss. This includes compensation for economic disadvantages, as well as the payment of damages for pain and suffering.
6. Will whistleblowers have to be able to prove a violation in order to receive protection?
No. At the time of reporting, the whistleblower must have had sufficient reason to believe that the information provided about violations was truthful and that this information fell within the scope of the Directive. If the violation cannot be proved afterwards, this will not be to the detriment of the whistleblower. The Directive will only deny its protection in the event of knowingly or carelessly wrong statements. In such a case, the whistleblower may perhaps have to expect sanctions and other negative consequences, as well.
7. Are the motives important for which the whistleblower acts?
No. In contrast to previous German law, the Directive has deliberately done without subjecting the whistleblower to an examination of his or her motive. This is to prevent the whistleblower from being denied protection in an unforeseeable manner, because in hindsight a Court is of the opinion, that his or her motivations were not laudable enough.
8. Will whistleblowers be denied protection if they have obtained the information through illegal channels?
This depends on the individual case. If the whistleblower committed independent criminal offences, like e.g. trespassing or hacking, he or she can still be held responsible for these acts in principle. On the other hand, whistleblowers are also protected when they violate other provisions or their contractual conditions in obtaining the information. This would be the case, for example, when a whistleblower enters another office unlawfully in order to copy evidence-grade documents.
9. Which addressees may the whistleblower turn to with his or her information?
The Directive explicitly leaves it up to the whistleblower whether he or she first turns to an internal body within the company or the administration or whether they pass the information on to an external authority straight away. In order to give whistleblowers a competent contact person, internal reporting channels are to be established in a lot of areas of the private and public sector in future (see question 10), and also, the state must establish external reporting channels in the form of specialised whistleblowing authorities.
The Directive allows disclosure of violations towards the media or the public only under certain conditions, namely when:
- the internal or external addressee does not give any feedback to the whistleblower about the initiation of follow-up measures within three months;
- the violation constitutes an immediate or manifest danger of public interest, e.g. in an emergency or when there is the danger of irreversible damage;
- the whistleblower has to fear retaliation even in the event of external reporting;
- evidence may otherwise be suppressed or destroyed;
- the competent authority is involved in the violation, or inadmissible agreements between the authority and the originator of the infringement might exist.
As these conditions are only given in very rare cases, the Whistleblower-Netzwerk commits itself actively to a liberalisation of the admissibility of disclosures.
10. Which organisations will in future be obligated to establish internal whistleblowing bodies?
The Directive commits, on principle, all legal entities of the private and public sector to establish appropriate channels and procedures for internal reporting and follow-up measures, as long as they have 50 or more employees. An exception can only be made for local communities with less than 10,000 inhabitants. The duty to establish such channels exists independently of the respective legal form of the entity, so it applies to stock corporations and associations alike.
Legal entities with 50 to 249 employees, as well as local communities, may pool their resources and establish joint whistleblowing bodies. In addition, legal entities with 50 to 249 employees have two years longer, i.e. until 17 December 2023 to establish their internal whistleblowing bodies.
When the obligated organisations establish an internal whistleblowing body, they have to adhere to several minimum standards.
Thus, specifically authorised employees are to be named and committed in particular to treat the whistleblower’s identity confidentially as a matter of principle, as far as they are not forced by a necessary and reasonable duty to disclose this person’s identity, for example, in order to safeguard an accused person’s rights of defence within the framework of criminal procedures. In addition, the content of a hint must be documented completely and precisely.
If a whistleblower turns to an internal whistleblowing body, it is obligated to confirm the receipt of the hint to the whistleblower within a period of seven days, according to the Directive. Within three months, proper follow-up measures must have been taken, and the whistleblower must be informed about them. In all this, continuous contact must be kept with the whistleblower, if necessary, questions must be asked, and personal encounters must be made possible on request.
The Directive, however, leaves it up to the legal entities what kind of reporting channels they want to establish, namely, if they are accessible orally, in writing or electronically. The European Union has left it to the discretion of the German legislator whether anonymous reports are to be admitted and special reporting channels are to be established for them.