Germany

The personal scope of application was implemented in Section 1 HinSchG in clear contrast to Article 4 (1) of the Whistleblower-Richtlinie (WBRL). In contrast to the directive’s enumerative list, the German legislator defined the personal scope of application as an abstract definition of the reporting person. This is based on Art. 5 No. 7 WBRL. This leads to ongoing disputes regarding the question of the conformity of the implementation with EU law. Discussion is focusing on whether Sec. 1 HinSchG can be interpreted in a manner that is consistent with EU law.

Section 16 paragraph 1 sentence 4 HinSchG stipulates that internal reporting offices should also process anonymous reports. However, Section 16 paragraph 1 sentence 5 HinSchG explicitly states that there is no obligation to design the reporting channels to allow anonymous reports. Section 27 paragraph 1 sentence 3 HinSchG also stipulates that external reporting offices should process anonymous reports. However, Section 27 paragraph 1 sentence 4 HinSchG again explicitly stipulates that, subject to special legal provisions, there is no obligation to design reporting channels in such a way that they allow anonymous reporting. The EU Commission has questioned whether this ‘should-be-regulated’ implementation is in line with EU law. The private and public sectors, as well as public authorities, are equally affected by the regulations outlined above regarding the scope of the obligation to set up hotlines in accordance with Section 12 paragraph 1 HinSchG.

Section 7 paragraph 3 sentence 1 HinSchG addresses the obligation of obligated entities to set up reporting offices, stating that they should create incentives for prioritising reports to internal reporting offices. However, external and internal reporting offices should be equivalent. Overall, the normative implementation is characterised by a free right to choose, as is particularly evident in Section 7 paragraph 1 sentence 1 HinSchG. Section 7 paragraph 1 sentence 2 HinSchG stipulates that potential reporting persons should prefer internal reporting offices if they do not fear reprisals. Creating incentives and maintaining the unrestricted right to vote present challenges national legislators when it comes to adopting provisions that are in line with EU law.

No, an implementation of Art. 8 para. 7 WBRL into German law has not taken place. In the explanatory memorandum to the German HinSchG (BT-Drs. 20/3442), there is no reference to a standard that serves to implement this provision of the WBRL.

Yes. With Section 12 paragraph 1 sentences 2-4 HinSchG, the German legislature also includes public institutions in the scope of application. The employment threshold of Section 12 paragraph 2 HinSchG also applies to these, so that an implementation of Article 8 (9) subparagraph 2 WBRL took place with these standards. There is a discussion about the extent to which the separate definition of the material scope in Section 12 paragraph 1 sentences 2-4 HinSchG is in conformity with EU law.

Section 12 paragraph 1 sentence 4 of the HinSchG authorises the federal state legislature to establish further provisions for municipalities. According to the statement of reasons for the HinSchG (BT-Drs. 20/3442 p. 114), this provision serves to implement Article 8 paragraph 9 subparagraph 3 of the WBRL. The following regulations enable such a joint internal reporting office in state law: Section 1 paragraph 2 sentence 1 KommMeldG Baden-Württemberg; Section 4 sentence 1 HHinMeldG (Hessen); Section 3 sentence 1 KommHinMeldG Mecklenburg-Vorpommern; Section 2 paragraph 2 sentence 1 NHinMeldG (Lower Saxony); Section 1 sentence 3 Saxon Whistleblower Reporting Act; Section 2 paragraph 2 sentence 2 Whistleblower Protection Act (Schleswig-Holstein); Section 3 sentence 1 Thuringian Whistleblower Protection Implementation Act. To what extent such implementation has been carried out by the municipalities is not clear.

Externe Meldestelle des Bundes beim Bundesamt für Justiz (External reporting office of the federal government at the Federal Office of Justice) https://bfj-hinweisgeberstelle.dataport.de/#/; Elektronisches Meldesystem zum Schutz für Whistleblower bei der Bundesanstalt für Finanzdienstleistungsaufsicht (Electronic reporting system for the protection of whistleblowers at the Federal Financial Supervisory Authority) https://www.bkms-system.net/bkwebanon/report/clientInfo?cin=2BaF6&c=-1&language=ger; Hinweisgebersystem beim Bundeskartellamt (Whistleblower system at the Federal Cartel Office) https://www.bkms-system.net/bkwebanon/report/channels?id=bkarta&language=ger

Yes, Section 31 paragraph 3 HinSchG

Yes, Section 31 paragraph 4 sentence 1 HinSchG

Yes, Section 28 paragraph 5 sentence 1 HinSchG

Apart from the support already provided for in German procedural law, e.g. legal aid in civil or administrative proceedings, §§ 114 of the Code of Civil Procedure et seq., we are unable to identify any support that has been explicitly introduced as part of the implementation of the WBRL.

Pursuant to Section 24 paragraph 2 HinSchG, the external reporting offices provide comprehensive and independent information and advice on options for redress and procedures for protection against reprisals. The relevant information is provided on the website of the central external reporting offices, for example https://www.bundesjustizamt.de/DE/MeldestelledesBundes/Fragen/Fragen_node.html#AnkerDokument96684

Section 37 of the HinSchG establishes a liability for damages in the event of infringement of the prohibition of reprisals. Section 40 HinSchG regulates administrative fines and prescribes a framework. Therefore, the acts listed in Art. 23 (1) WBRL may be subject to an administrative fine of up to EUR 10,000.00 to EUR 50,000.00, according to Section 40 paragraph 6 HinSchG.

Section 38 of the HinSchG establishes the liability for damages in the event of reporting or disclosing inaccurate information. According to Section 40 paragraph 1 in conjunction with paragraph 6 sentence 1 of the HinSchG, a fine of up to EUR 50,000.00 is possible.

In line with the relevant demands in legal literature, the German legislator has decided to extend the material scope of application of the HinSchG to include the reporting and disclosure of violations of national law, as well, albeit not across the board. The WBRL is limited in scope to the reporting of violations of certain EU legal acts.