Whistleblowing can damage the reputation of the person concerned – be it an individual, an institution or a company. This can negatively impact the economic situation of the person concerned and thus threaten their existence. Therefore, such actions are generally undesirable for companies and are openly criticised by them.
For this reason, whistleblowers are subject to legal protection. Since the Whistleblower Protection Act came into force on 2 July 2023, all German companies with more than 50 employees must set up an internal whistleblower system. Smaller companies with between 50 and 249 employees are granted a deadline for implementation until 17 December 2023. Companies that fail to fulfil this obligation will face considerable legal consequences (including severe fines).
To provide our clients with the support they need, the German law firm Schlun & Elseven Rechtsanwälte offers skilled and committed legal assistance – both for affected companies and for whistleblowers. Our lawyers will be happy to inform you about the standards that apply in this specific context and about your rights and obligations as an employer or employee. Our legal experts will support you in setting up legally compliant whistleblowing systems certified following the applicable ISO norm so that your company is always legally compliant. We will also provide you with information on the German Supply Chain Act (LkSG), which requires companies to set up a corresponding complaints office and rules of procedure.
EU Whistleblower Guidelines
In October 2019, the EU adopted the “Whistleblower Directives”, which are intended to create a uniform standard for the protection of whistleblowers within the EU. The directives had to be implemented by the member states by 17 December 2021. This has been done in Germany with the Whistleblower Protection Act (HinSchG).
The Directive protects employees and other groups, such as former employees, trainees, and job applicants. Third parties associated with the whistleblower who could suffer reprisals in their professional environment because of the report are also covered by the scope of protection. Such persons who report breaches of the law during their professional activities should be primarily protected from reprisals. However, persons who knowingly report false or misleading information are excluded from such protection.
Legal Situation in Germany | New Whistleblower Protection Act from 02/07/2023
In a decision from 2001, the Federal Constitutional Court in Germany had already recognised a fundamental right to exercise civil rights through officially initiated whistleblowing under Article 2 (1) of the German Basic Law (GG) in conjunction with the principle of the rule of law under Article 20 (1) GG (BVerfG, decision of 2 July 2001 – 1 BvR 2049/00, NZA 2001, 888, 890). Insofar as information is passed on to law enforcement authorities that is not knowingly untrue or false, the employee must not suffer any disadvantages under employment law as a result.
However, as