Germany: Ministry of Justice publishes draft Whistleblower Protection Act
The Ministry of Justice published, on 13 April 2022, a draft Whistleblower Protection Act ('HinSchG') to transpose the Directive on the Protection of Persons who Report Breaches of Union Law (Directive (EU) 2019/1937) ('the Whistleblowing Directive') into German law. In particular, the Ministry pointed out that the goal of improved whistleblower protection must be reconciled with the interests of companies and public administration, which are obliged to take whistleblower protection measures, in such a way that bureaucratic burdens remain manageable.
Specifically, the draft HinSchG highlights that, in Germany, whistleblower protection has primarily been shaped by case law; by transposing the Whistleblowing Directive and codifying the principles established by case law, the draft HinSchG seeks to create legal certainty for whistleblowers as to the specific cases where they may enjoy protection when reporting or disclosing violations. Notably, the draft HinSchG outlines, among others, that:
- the personal scope of application includes all persons who have obtained information about violations in their professional environment (§ 1 of the draft HinSchG);
- the material scope of application goes beyond the areas of laws specified by the Whistleblowing Directive;
- criminal law and certain administrative offences in particular have been included, and the areas of law specified by the Whistleblowing Directive have been extended, to a limited extent, to corresponding national laws (§ 2 of the draft HinSchG); and
- two equivalent reporting channels, internal and external, have been introduced, and whistleblowers may freely choose between the same (§§ 7 to 31of the draft HinSchG).
Moreover, the draft HinSchG introduces amendments to existing laws, such as the Financial Services Supervision Act of 22 April 2002, as amended ('FinDAG'), in order to adjust the same to the new framework.
Notably, the Ministry outlined that stakeholders may submit their comments until 11 May 2022.