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On December 16, 2022, the Bundestag passed the Whistleblower Protection Act (“HinSchG”). Due to the European Court of Justice’s (“ECJ”) Whistleblower Directive of December 16, 2019, the German legislator was obliged to implement the Directive by December 17, 2021.
With a one-year delay, the law was passed by the Bundestag last Friday. It must now pass the Bundesrat and is expected to come into force in March 2023. Employees in companies and public authorities who report malpractices or criminal offenses such as corruption, insider trading, human rights violations, violations of the German Equal Treatment Act, etc. should not experience any disadvantages due to their reporting and thus should not be discouraged from reporting.
On December 14, 2022, the bill was supplemented in the legal committee of the Bundestag under the impression of the "Reichsbürger" problem to the effect that the protection of the law also applies if the reports refer to the constitutional loyalty of officials.
What do companies need to do now?
The whistleblowers must not suffer any disadvantages under employment law as a result of their report. Warnings, dismissals, denial of promotion, bullying, etc. are prohibited. Instead, the employer is obligated to compensate any non-pecuniary damages if the whistleblower suffers disadvantages from the employer due to the report.
Practical advice
Please consider carefully which solution is best suited for your company. Either you set up the reporting channel directly in the company, decide on a digital solution or on an external ombudsman/ombudswoman to whom any grievances will be reported. We will be happy to support you in this matter.
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