The WhistleblowerProtection Act: Who is protected by the law and which tips are protected

Who can actually submit a report? Who must therefore have access to the internal reporting point? What can actually be reported? And what exactly has changed due to the dispute between the Federal Council and the government?

Background of the dispute On December 16, 2022, the bill for the HinSchG (Whistleblower Protection Act) passed the Bundestag. However, the Federal Council subsequently withheld its approval. Subsequently, the mediation committee was called, which developed a compromise that the Federal Council agreed to on May 12, 2023. The dispute was thus settled. On June 2, the HinSchG finally came into force. The consequence of a longer non-implementation would have resulted in a fine of 50,000 euros per day for Germany payable to the European Union.

These changes from the compromise proposal of the mediation committee affect both the personal and substantive scope of protection, so we want to give you an overview of the current state here.

Who? – Personal Scope of Application The personal scope of application of the EU Whistleblower Directive is very broad. The Whistleblower Protection Act (HinSchG) also follows this orientation. The personal scope of the HinSchG extends to persons who are employed dependently. This includes employees in the private and public sector, trainees, interns, as well as relatives or colleagues of the person giving the tip if they have a professional connection to the employer or to the person giving the tip.

Other people who fall within the personal scope of protection are:

• Employees whose employment relationship has either not yet started or has already ended
• Supporters of the person giving the tip
• Journalists
• Shareholders
• People who belong to the administrative, management, or supervisory body of a company
• (Sub)contractors
• Suppliers
• Temporary workers

The EU Whistleblowing Directive (Directive 2019/1937) also explicitly mentions civil servants of the federal states, municipalities, and municipal associations, other corporations, institutions, and foundations under public law subject to the supervision of a federal state, and judges in state service – for whom the directive also applies. These have now initially been excluded from the personal scope of protection by the compromise proposal. Appropriate specific legal regulations are to be issued here.

What? – Material Scope of Application The European legislator only had the competence to design the substantive scope of application within the framework of its European legal competencies. However, he encouraged national legislators to expand the scope of protection in order to avoid evaluation contradictions. For example, criminal law is within the competence of the member states.

The substantive scope of application covers the following violations:

• Criminal offenses
• Offenses subject to a fine, provided the violated regulation serves to protect life, body, or health or the rights of employees or their representative bodies
• Public procurement
• Financial services, financial products, and financial markets as well as prevention of money laundering and terrorist financing
• Product safety and compliance
• Traffic safety
• Environmental protection
• Radiation protection and nuclear safety
• Food and feed safety, animal health, and welfare
• Public health
• Consumer protection
• Protection of privacy and personal data and network and information security
• Violations against the financial interests of the Union (as per Art. 325 TFEU)
• Violations against the internal market rules (as per Art. 26 Para. 2 TFEU; for example, violations against competition rules and state aids, actions that violate corporation tax)

The Legal Committee in the Bundestag had also included constitutionally hostile expressions – even below the threshold of criminal liability – by civil servants in the substantive scope of protection for the HinSchG to counter the problem of the Reichsbürger movement in public service. This area will initially only be applied to federal civil servants. Here too, it is expected that this will be included in the special legal regulations for civil servants of the federal states.

Outlook With the adoption of the compromise of the HinSchG, the German legislator was able to fulfill its European obligation to implement the Whistleblower Directive. However, the compromise leaves a lot of room for uncertainty in municipalities and for civil servants. The EU Whistleblower Directive, however, has direct effect in the member states if these have not implemented the directive in a timely or proper manner. The consequence is that both employees of municipalities and civil servants can refer to the EU Whistleblower Directive.

This means that both legal persons of private law and public law must familiarize themselves with the new obligations of the Whistleblower Protection Act in order to meet the numerous new tasks and requirements. The implementation deadline of the HinSchG for companies with 250 or more employees is only one month from the announcement. Companies with more than 50 employees will need an internal reporting point from mid-December 2023 to which whistleblowers can turn.

We at eagle lsp take a European law-compliant approach and advise both companies and public employers on the implementation requirements of the HinSchG.

Have you not yet implemented a reporting point service? Then we should talk!

As of: 06/02/2023