Bundestag passes Whistleblower Protection Act

On 16 December 2022 - and thus exactly three years after the EU Whistleblower Directive came into force - the Bundestag passed the new, long overdue German Whistleblower Protection Act [Hinweisgeberschutzgesetz, HinSchG]. Previously, the Legal Affairs Committee had made significant last-minute changes to the bill.

Compared to the original draft bill (see our post of 14 April 2022), the HinSchG includes the following changes in the short term:

• To date, the receipt of anonymous reports has not been obligatory. The Bundestag has now decided that both internal and external reporting offices/channels must record anonymous reports. In addition, the communication with the reporting person must ensure their anonymity. The HinSchG provides an additional implementation period until 01 January 2025 to implement anonymity in the reporting channel. 
• Employers are to provide incentives for whistleblowers to contact the internal reporting office first before contacting an external federal or state reporting office. Although whistleblowers are still free to choose between internal and external reporting offices, this means that any reports can first be carefully investigated internally and external reporting bodies can refer to the internal investigations during further clarification measures.
• Finally, whistleblowers are to be able to claim both material and non-material damages in the event of any prohibited reprisals, e.g. for damage to their reputation caused by the employer.
• In light of the recent "Reichsbürger raid," statements made by public officials have been recorded as violating their duty to uphold the German Constitution. With this, the scope of application has been extended once again compared to the EU requirements. The draft had already gone beyond EU requirements by including reports of all types of criminal offences and serious misdemeanours. Originally, only violations of EU law and national law based on EU law were envisaged.

Update of 02/10/2023:

In its plenary session today, the Bundesrat did not approve the bill, in particular due to the aboveamendments. The criticism of the EU-led states, which was the main reason for the rejection, primarily concerns the excessive implementation of the EU directive, e.g. the obligation of internal and external reporting offices to also record anonymous reports. They also criticised an increased risk of abuse and excessive bureaucracy.

The mediation committee of the Bundesrat and Bundestag will probably now be called in. It is therefore likely that the entry into force of the German Whistleblower Protection Act will be delayed by a further few months and cannot be expected before the beginning of the second half of the year. The EU Commission had already initiated proceedings against the Federal Republic of Germany for breach of contract at the beginning of 2022. According to the EU Whistleblower Directive, it should already have been implemented on 17 December 2021.

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