Implementation of whistleblower systems

Implementation of whistleblower systems

The federal and state governments have been able to reach a compromise on the protection of whistleblowers, and today, 12 May 2023, the Bundesrat approved the amended German Whistleblower Protection Act [Hinweisgeberschutzgesetz, HinSchG].

The HinSchG will enter into force one month after promulgation and is thus anticipated for mid-June 2023. This means that, as of mid-June, companies with at least 250 employees must offer an internal reporting office in compliance with the requirements of the HinSchG. Companies with between 50 and 249 employees still have a "transition period" until 17 December 2023 to implement the Act.

The most recently enacted substantive amendments to the Act are as follows:

• The obligation to accept anonymous reports has been waived. This applies to both internal and external reporting offices. All that remains is a discretionary provision on processing anonymous incoming reports.
   
• In cases where effective internal action can be taken against violations, whistleblowers are to give preference to reporting to an internal office.
   
• Information about violations now falls within the substantive scope of the Act only if it relates to the employing entity or another entity with which the whistleblower is or has been in professional contact.
   
• The Act still contains a reversal of the burden of proof if the whistleblower suffers a disadvantage in connection with their professional activities. However, it is presumed that the disadvantage is a reprisal for the tip-off only if the whistleblower also asserts this themself. The whistleblower’s right to compensation for damages has been deleted.
• The maximum amount of fines threatened for violations of the Act is being reduced from 100,000 euros to 50,000 euros.

We therefore recommend that companies familiarise themselves with the new legal situation immediately - if they have not already done so. Where internal reporting channels already exist, companies must check whether they meet the requirements of the HinSchG. The same applies to the underlying organisational instructions. If an internal reporting system does not yet exist, a legally compliant system needs to be implemented. If you need assistance with this, please feel free to contact us. We would be pleased to advise you!           

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