German authorities and companies should not be obliged to follow up on anonymous information about abuses. Negotiators from the Bundestag and Bundesrat agreed on this on Tuesday evening. The controversial law for “better protection for whistleblowers” should only contain the recommendation that reporting offices should also process anonymous tips. Whistleblowers are also advised to first ring the alarm bells internally in cases in which effective action can be taken against violations internally.
The Bundestag passed its original legal text in December. However, the Federal Council, at the instigation of the CDU and CSU, failed the initiative in February, meaning that the whistleblower law has not yet come into force. The Conservatives cited excessive costs and additional bureaucracy as reasons for their rejection.
She was also bothered by the fact that the responsible authorities should also follow up on anonymous tips. information about violations according to the compromise only fall within the scope of the law if they relate to the employer or another entity with which the whistleblower had professional contact.
dilution
The Bundestag decision provided for a reversal of the burden of proof if the whistleblower is disadvantaged professionally. The compromise does not do away with this, but softens it: the assumption that discrimination is a reaction to a report of abuse should only exist if the whistleblower asserts this himself.
Compensation for immaterial damages for whistleblowers will also be abolished. And the maximum fine for violating the law will be halved from 100,000 to just 50,000 euros.
Decision follows quickly
With the agreement, the way is clear for adoption in the Bundestag and Bundesrat by the end of the week. Most of the law is expected to come into force a month after promulgation – probably in mid-June. Time is of the essence: The EU Commission took Germany to the European Court of Justice in mid-February. Because the Federal Republic has still not implemented the EU directive on protecting whistleblowers published in the Official Journal in 2019, despite the deadline at the end of 2021. Germany therefore has to pay a daily fine of 50,000 euros.
Legal entities such as companies, authorities and other legal entities with more than 50 employees as well as all financial service providers must provide an internal whistleblower system in accordance with the EU regulation and provide a special officer as a contact person. Exceptions only apply to municipalities with fewer than 10,000 inhabitants. Contrary to what has previously been stipulated by German case law, a whistleblower no longer has to first report a grievance internally in their own company or authority. If there are no such reporting channels, whistleblowers are already permitted to contact external bodies.
criticism of the compromise
“The compromise shows that the Union parties and parts of the economy still have major reservations about whistleblowers, even though they act in the interests of society and the economy,” complained the managing director of the whistleblower network, Kosmas Zittel. “Fortunately, at least the realization has prevailed that a restriction of the material scope of application would not have served anyone.”
The legal scholar Simon Gerdemann warns that the deletion of immaterial claims for damages could have “serious effects on whistleblowers” and leave them in the face of many reprisals. This violates the EU requirements.
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