On 16 December 2022 - and thus exactly three years after the EU Whistleblower Directive came into force - the Bundestag passed the new, long overdue German Whistleblower Protection Act [Hinweisgeberschutzgesetz, HinSchG]. Previously, the Legal Affairs Committee had made significant last-minute changes to the bill.

Compared to the original draft bill (see our post of 14 April 2022), the HinSchG includes the following changes in the short term:

  • To date, the receipt of anonymous reports has not been obligatory. The Bundestag has now decided that both internal and external reporting offices/channels must record anonymous reports. In addition, the communication with the reporting person must ensure their anonymity. The HinSchG provides an additional implementation period until 01 January 2025 to implement anonymity in the reporting channel.
  • Employers are to provide incentives for whistleblowers to contact the internal reporting office first before contacting an external federal or state reporting office. Although whistleblowers are still free to choose between internal and external reporting offices, this means that any reports can first be carefully investigated internally and external reporting bodies can refer to the internal investigations during further clarification measures.
  • Finally, whistleblowers are to be able to claim both material and non-material damages in the event of any prohibited reprisals, e.g. for damage to their reputation caused by the employer.
  • In light of the recent "Reichsbürger raid," statements made by public officials have been recorded as violating their duty to uphold the German Constitution. With this, the scope of application has been extended once again compared to the EU requirements. The draft had already gone beyond EU requirements by including reports of all types of criminal offences and serious misdemeanours. Originally, only violations of EU law and national law based on EU law were envisaged.

Provided the Bundesrat gives its approval in its first plenary session on 10 February 2023, the Act's entry into force can be expected as early as the middle of the year. The HinSchG is thus on the home stretch. Against this background, companies need to check in the short term whether and to what extent the requirements of the HinSchG have already been implemented in a legally compliant manner in order to avoid sanctions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.