Whistleblower Protection Act: Internal and External Reporting Offices

Various reporting channels are available to whistleblowers:

1. Internal reporting offices
2. External reporting offices
3. Disclosure: In exceptional cases, the whistleblower also has the option of disclosing information about a violation.

All reports must be received and processed in different forms. Reporting channels must be able to handle reports orally or in text form.

Oral reports, e.g. by telephone or voice message
Written reports, e.g. by email or via a reporting platform
Personal meeting: The whistleblower has the right to meet in person and thus submit the report.

Internal reporting offices – companies and authorities are obliged to set them up
Companies and authorities with more than 250 employees have until July 2, 2023, to set up an internal reporting office or to contract a third party to do so. Failure to comply with this obligation can result in fines of up to 50,000 euros. Each private and public employer with at least 50 employees must implement their own reporting office by the end of the year.
The persons commissioned with the internal reporting office must remain independent in their activities – so there must be no conflict of interest between the other activities of the commissioned person and the tasks associated with the reporting office.
Furthermore, the persons commissioned must also have the relevant specialist knowledge to process the reports.

Does the submitted report fall within the scope of the HinSchG?
If yes: What concrete follow-up measures do I now have to initiate?
What information is missing for me to fully evaluate the report?
What deadlines do I have to observe?

Anonymous reports should also be processed according to the HinSchG. The required expertise often requires training and further education for reporting office staff.

The external reporting office – authorities receive reports, even if the internal reporting office fails
Every EU member state is mandated under the EU Whistleblower Directive to designate authorities as external reporting offices.

In Germany, these external reporting offices exist:

Federal Office of Justice
Federal Financial Supervisory Authority (e.g. for reports of information about violations of national and European regulations that fall within the supervisory area of the Federal Financial Supervisory Authority as an all-financial supervisor)
Federal Cartel Office (e.g. for violations of national competition law)
In addition, the federal states have the opportunity to set up their own external reporting office for reports that concern the respective state administration and the respective municipal administration.

Submitting a report to an external reporting office
External reporting offices also provide whistleblowers with comprehensive information about submitting an internal report. In addition, external reporting offices offer whistleblowers comprehensive information and advice about existing remedies and procedures for the protection of reprisals before submitting a report.

External reporting offices should also process anonymously incoming reports. However, there is no obligation to design the reporting channels in such a way that they allow the submission of anonymous reports. The Federal Office of Justice offers anonymous reporting.

Disclosure – Information is made available to the public
The provision does not differentiate according to which way the public is informed. Disclosure within the meaning of Section 32 HinSchG is subsidiary to internal or external reporting and is designed as an exception only under strict conditions. Possible prerequisites are:

A threat to the public interest,
The external reporting path did not work,
The whistleblower fears reprisals after submitting a report to an external reporting office.

It should also be noted that the dissemination of false information about violations is prohibited in the context of disclosure. The reason for this is that this type of disclosure can lead to false suspicions in the public, which in turn can cause considerable damage.

Internal and external reporting offices – why both channels are important
The whistleblower is protected under the HinSchG, if

The correct reporting path was followed
The whistleblower had sufficient reason to believe at the time of the report that the information they reported was true
These fall within the scope of the HinSchG.
This means that the whistleblower must also adhere to the correct reporting path in order to meet the requirements for whistleblower protection.

Relationship of reporting paths
The constant case law of the Federal Labor Court and the European Court of Human Rights had assumed a priority of internal reporting before the introduction of the EU-WBRL and the HinSchG. This was justified with the loyalty and consideration obligations of the employee towards the employer.
The HinSchG now describes a right to choose between internal and external reporting according to Section 7 (1) sentence 1 HinSchG. This means that the whistleblower can decide for themselves whether to contact an internal or external reporting office. According to the recommendation for a decision by the Mediation Committee, it was included in Section 7 (1) sentence 1 HinSchG that in cases where effective action can be taken internally against the violation and they do not fear reprisals, they should prefer reporting to an internal reporting office.

Consequence of the right to choose for companies
The right to choose must be taken very seriously and in this context also the implementation of an internal reporting office service. Employers therefore have to provide their employees with clear and easily accessible information about the use of the reporting procedures. The internal reporting office must be trustworthy so that the whistleblower also reports internally. This has the advantage that no reputational damage and subsequent possible loss of sales are to be feared. In addition, the violation can be processed and ended quickly. In order for violations to be effectively exposed and stopped, the relevant information must quickly reach those who have the necessary powers to solve the problem, if possible.
Whistleblowers generally feel more comfortable reporting information internally, unless they have reason to report information externally. It should also not be overlooked that a whistleblower could potentially jeopardize their own job – and thus their livelihood – with a report and therefore prefer to submit a report internally.
Providers like eagle lsp offer the advantage that the lawyers are already obliged to maintain confidentiality due to their status. In addition, outsourcing to a third party offers independence and thus also trust for whistleblowers to submit a report internally.

Have you not yet implemented an internal reporting office? Then we should talk!

As of: June 2, 2023