Art. 2 (2) - Extension of material scope beyond EU law
The draft legislation also covers breaches that are subject to criminal penalties and fines under German law. The latter, however, only insofar as the violated regulation serves to protect life, body or health or the rights of workers or their representative bodies. In addition, breaches of national law in specific legal areas such as environmental protection, food safety or consumer protection are also included.
Art. 4 (1) - Extension of personal scope (protected person)
The personal scope of application matches that of the directive. Covered are all persons who, in connection with their professional, official or self-employed activities or in the run-up to professional activities, have obtained information about breaches and report or disclose them to the designated reporting bodies. Not only employees are protected, but also civil servants, self-employed persons, shareholders and employees of suppliers. In addition, persons who are the subject of a report or disclosure and other persons affected by a report or disclosure are protected.
Art. 6 (2) - Acceptance of anonymous reports
When it comes to competent authorities regarding external reporting, anonymous reports should be investigated both by internal and external reporting offices. However, there is no obligation to do so under the draft law. Legal entities in both the private and public sector are only required to investigate anonymous reports if they have sufficient resources to consider the anonymous reports in addition to reports from named persons. The draft also contains no obligation for legal entities or competent.
Art. 7 (2) - Encouraging internal reporting
Whistleblowers are free to choose between internal and external reporting channels. Internal reporting is not encouraged by the draft law.
Art. 8 (7) - Obligation for legal entities in the private sector with less than 50 workers
There is no such obligation. In principle, the obligation to set up internal reporting channels extends to all legal entities with at least 50 workers. Exceptionally, certain legal entities with fewer than 50 workers must establish internal reporting channels. This exception corresponds to the regulation in Art. 8 (4) of Directive (EU) 2019/1937.
Art. 8 (9) second subparagraph - Exemption for municipalities with fewer than 10.000 inhabitants / fewer than 50 workers / other entities with fewer than 50 workers
For municipalities and associations of municipalities, the obligation to set up internal reporting channels is governed by the respective state law, as the Federal Government of Germany is prohibited from directly transferring tasks to municipalities and associations of municipalities. In implementation of subparagraph 2 of Article 8 (9) of the Directive (EU) 2019/1937, the respective state law may stipulate that municipalities and associations of municipalities with fewer than 10,000 inhabitants are exempt from the obligation to set up internal reporting channels.
Art. 8 (9) Third subparagraph - Shared internal reporting channels for municipalities
For municipalities, for which the obligation to set up internal reporting channels is governed by the respective state law, the respective state law may stipulate that municipalities and associations of municipalities may jointly operate internal reporting channels in implementation of subparagraph 3 of Article 8 (9) of the Directive (EU) 2019/1937.
Art. 11 (1) - Authorities competent to receive external reports
The external reporting office is established at the federal level at the Federal Office of Justice (BfJ). The draft law gives the federal states the option of setting up their own reporting offices for employers under public law in accordance with the provisions of this draft law. In addition, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) acts as an external reporting office for notifications of information on violations of national and European regulations that fall within BaFin’s supervisory remit as a pan-financial regulator; the German Federal Cartel Office is responsible for violations of the prohibition of restrictive agreements and the prohibition of abuse of a dominant market position under Articles 101, 102 TFEU and the corresponding German regulations. As there is no effective law yet, there are no external reporting offices. Therefore, only the links to the home page of the respective authorities follow: https://www.bundesjustizamt.de/DE/Home/Home_node.html; https://www.bundeskartellamt.de/DE/Home/home_node.html; https://www.bafin.de/DE/Startseite/startseite_node.html.
Art. 11 (3) first sentence - Competence of authorities to decide on the minority of external reports
The competent authorities may close the procedure if the breach is minor, which is to be determined on a discretionary basis. In determining what is meant by “minor”, the impact and duration of the breach or the fact that compensation has already been paid could possibly be taken into account as criteria. Among other things, cases should be covered in which (minor) violations are involved which have little or no impact on the work (minor cases).
Art. 11 (4) first sentence - Competence of authorities to decide on closing procedures regarding repetitive external reports
Yes. If a report concerns a matter on which procedures under the draf law have already been closed, competent authorities may, at their discretion, independently close the procedure if the report does not contain any new facts.
Art. 11 (5) - Competence of authorities to handle particular external reports with priority
Yes. Reports of breaches of particular seriousness may be given priority. This should enable competent authorities to prioritize cases in a meaningful way in the event of a high volume of cases.
Art. 20 (2) - Financial assistance and support measures for reporting persons
No. There is nothing provided in the draft law.
Art. 21 (1) first sentence - Protection measures against retaliation
A whistleblower shall not be held legally responsible for obtaining or accessing information that he or she has reported or disclosed, unless the obtaining as such or the access as such constitutes an independent criminal offense. The same applies if the person providing the information had reasonable grounds to believe that disclosure of the information was necessary to detect a breach.
The draft law also prohibits any kind of retaliation against whistleblowers. In the event of a violation of the prohibition of retaliation, the offender is obliged to compensate the whistleblower for the resulting damage. If, after a report or disclosure, the whistleblower suffers a disadvantage in connection with professional activity, it shall be presumed that such disadvantage constitutes retaliation. In this case, the person who has disadvantaged the whistleblower shall prove that the disadvantage was based on sufficiently justified reasons or that it was not based on the report or disclosure.
A fine may be imposed for obstructing or attempting to obstruct a report. The same applies to taking retaliation as well as to breaches of confidentiality with regard to the identity of whistleblowers.
Art. 23 (1) - Penalties
(a) hinder or attempt to hinder reporting: up to EUR 100,000.00;
(b) retaliate against reporting person: up to EUR 100,000.00;
(c) persons bringing vexatious proceedings against reporting person: up to EUR 100,000.00;
(d) breach the duty of maintaining the confidentiality of reporting persons: up to EUR 100,000.00.
Art. 23 (2) first sentence - Penalties for false reporting
The disclosure of knowingly false information may be sanctioned with a fine of up to EUR 20,000.00.
Art. 25 (1) - Further national rights of reporting persons
The rights of whistleblowers in the draft law are limited to the requirements in the directive.
None of the provisions in the national draft law remarkably go beyond the minimum requirements in the directive.