On October 7, 2019, the EU adopted the Directive on the protection of persons who report breaches of Union law (hereinafter referred to as the WBD – Whistleblower Directive).
In order to be legally effective, the Directive has to be implemented by the German legislator. The German legislator has time until December 17, 2021 to create the corresponding legal bases.
What concrete effects can be expected? How can Germany-based companies prepare themselves?
According to Art. 4 (1) WBD, legal entities must in future “establish internal channels and procedures for the submission and following up of reports”. These channels need to be set up, among other things, in a way that ensures the confidentiality of the whistleblower is maintained. In addition, companies will be obliged to appoint a person who is responsible for handling the report.
Companies failing to comply with these obligations will be sanctioned effectively, appropriately and exemplarily. Therefore, the German legislator is required to set appropriate fines.
Moreover, the Directive allows whistleblowers to turn directly to an external authority. However, going to the public will only be permitted in certain cases: in the case of an immediate or apparent threat to the public interest, in the case of fear of reprisals upon external reporting or if there is little chance of success.
The WBD provides for explicit protection of whistleblowing in the event of infringements of the following fields of Union law:
- Public commissioning,
- Financial services,
- Prevention of money laundering,
- Healthcare,
- Product and traffic safety,
- Nuclear safety, and
- Consumer and data protection.
The German legislator, however, is authorized to define further subject areas and thus extend the field of application.
The directive provides for a procedural reversal of the burden of proof in order to protect employees from reprisals. This means that in a possible action against unfair dismissal, employers would have to prove that the dismissal was not based on the whistleblowing.
The German legislator, however, is authorized to define further subject areas and thus extend the field of application.
The directive provides for a procedural reversal of the burden of proof in order to protect employees from reprisals. This means that in a possible action against unfair dismissal, employers would have to prove that the dismissal was not based on the whistleblowing.
Practical recommendation:
Use the remaining time corridor to prepare yourself thoroughly:
- Establish internal reporting channels. Ideally, you should develop a digital whistleblower system. But it is also possible to set up a separate e-mail inbox or a corresponding telephone number.
- Appoint (at least) one designated person responsible for whistleblowing protection. This person will need appropriate authority and extensive training.
- Define a secure system for the handling of reports that have been made. It has to be ensured that the whistleblower’s anonymity is preserved. In addition, they should receive a response within three months.
- Inform your employees comprehensively and transparently about the reporting channels that have been established.
- Ideally, train your employees on the handling and legal consequences of the reporting channels.
- Make sure that in future every new employee is informed routinely about the measures for whistleblower protection. Here, it is useful to provide written information (analogous to data protection declarations).
