The introductory words of the coalition agreement 2021-2025 signed on
7 December 2021 by SPD, FDP and Greens of the designated Chancellor Olaf Scholz give hope:
“WE ARE NOT CONCERNED WITH A POLICY OF THE SMALLEST COMMON DENOMINATOR, BUT WITH A POLICY OF GREAT EFFECT. WE WANT TO DARE MORE PROGRESS ” (Olaf Scholz,SPD.de, 26.11.2021)
This also applies to the protection of persons who report violations and misconduct (whistleblowers). The obligation to create an internal reporting channel comes on the basis of the draft bill of the German Federal Ministry of Justice and Consumer Rights dated 26 November 2020.
The draft bill did not limit itself to violations of EU law, but extended the protection of whistleblowers to (suspicious) reports of violations of national law.
The coalition agreement follows on from the draft bill, but is limited to “significant breaches of regulations or other significant misconduct, the discovery of which is in the particular public interest.” It remains the responsibility of the whistleblower to determine whether the event constitutes a “significant” breach and could be of public interest.
Affected companies, organisations and authorities with more than 50 employees as well as municipalities and communities with more than 10,000 inhabitants should get information about possibilities for setting up internal reporting channels.
Experience shows that a preparation time is required for the implementation of such reporting channels, which can take up to three months depending on the complexity of the structures. The implementation phase includes the creation of internal guidelines and procedure, records of data processing, terms of use and privacy policies.
In addition, it is advisable to inform the employees about their rights and obligations as well as the available reporting channels.
In addition to fines of up to €100,000, claims for damages and reputational damage are possible consequences of failing to implement the future Whistleblower Protection Act. The risk of external reports is even greater if no internal trustworthy reporting channels are provided.
According to the draft bill, Section 7 (1), whistleblowers are free to contact either a company-internal or external reporting office in order to report wrongdoing/violations or suspicions thereof. Protection against reprisals must also be guaranteed in the case of external reporting.
Factors such as tone from the top and trust in whistleblower protection play an essential role in choosing the right reporting channel. The zero tolerance with which reported violations and suspicious activity reports are cleared up internally is an important factor in building trust.
