One year after the deadline for the implementation of the EU Directive for better whistleblower protection, the government draft of the HinSchG of 14 December 2022, as amended in the Legal Affairs Committee, was passed in the Bundestag today. After approval by the Bundesrat, the HinSchG will become mandatory for all companies > 250 employees after three months and for all companies >50 employees from December 2023.
We appreciate the statement by Dr. Till Steffen, Member of Parliament, that anonymous reports are an important instrument to report breaches and to put an end to abuses. Even in the basic version of a whistleblower software, it is possible to receive and process anonymous reports and it does not mean an enormous financial effort, as claimed.
– Anonymous tips have to be received and processed. Appropriate channels of communication need to be established with the person making the tip-off.
– Information on anti-constitutional statements (verbal, written and gestures) by civil servants has been included in the scope of application.
– Furthermore, the scope of application was extended by the Digital Markets Act of the European Union and offences against animal protection.
– Whistleblowers have a claim for damages in case of infringement of immaterial values.
– Despite the EU directive on better protection of whistleblowers, corporate groups can share a reporting channel with their subsidiaries that have more than 250 employees. In our view, this requires improvement and correct implementation of the directive’s provisions.
– Other violations, such as reports against the General Equal Treatment Act (AGG), are still not covered by the Whistleblower Protection Act. A corresponding motion for a resolution to examine and close this legal loophole was adopted.
– Classified information is not covered by the Whistleblower Protection Act either. There is an urgent need for improvement here.
Companies will have to provide anonymous reporting channels and process the reports on an equal footing with confidential reports. Furthermore, it will be obligatory for reporting offices to make adequate arrangements to ensure anonymous communication between whistleblowers and reporting offices. Besides the provision of an inadequate suggestion box or technically insecure e-mail box, the most appropriate solution to create a secure and trustworthy reporting channel is the implementation of a digital whistleblowing system.
Whistleblowers who suffer reputational damage as a result of their report should be able to claim compensation. The sole focus on monetary disadvantages is thus a thing of the past and increases the level of protection for the reporting person.
One reaction to the growing “Reichsbürger” scene and the spread of right-wing ideas within public authorities, especially among police officers, is the protection of whistleblowers within the police and investigative and criminal authorities. Whistleblowers are protected if they report anti-constitutional statements made by officials or police officers. The statements do not have to exceed the threshold of criminal liability. Statements include oral and written statements in chats or gestures. The duty of civil servants to be loyal to the constitution was emphasised. The violation of this duty is particularly affected by the denial of the free democratic basic order and the rejection of the existence of the German Federal Republic.
The scope of application is further extended by the Digital Markets Act of the European Union. This implements the mandatory requirements of the EU Whistleblower Directive to better protect whistleblowers.
The recent developments in the ‘Reich citizens’ scene’ with extensive raids act as a catalyst to speed up the legislative process. The amendments to the current draft show welcome improvements and further strengthen the position of persons providing information. In our view, the mandatory receipt of anonymous reports is an important part of the amendments. Secure digital whistleblowing systems such as the Smart Integrity Platform will play a crucial role in building trust in the internal whistleblowing system in the future. With regard to compensation, it remains to be determined what compensation victims will be entitled to. The disadvantage of lengthy legal proceedings for the whistleblower remains. Compensation would still have to be claimed.
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