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The final steps to the Whistleblower Protection Act
After the draft bill for a Whistleblower Protection Act (HinSchG) failed for the first time on February 10, 2023 due to the approval of the Bundesrat (we reported), the subsequent planned splitting of the regulations into two laws by the Bundestag (we also reported on this) could not lead to a final solution. Ultimately, the matter had to be referred to the Mediation Committee, which has now recommended a resolution for a final draft of the HinSchG on May 9, 2023.
What changes were proposed by the Mediation Committee?
No obligation to process anonymous reports
Probably the most significant change was made to the provision in Section 16 para. 1 HinSchG. Contrary to what was previously intended, internal reporting offices are now not (or no longer) obliged to accept and process anonymous reports. According to the wording of the standard, however, the internal reporting office "should" also process anonymous reports. Whether companies make use of this option, however, is ultimately a purely corporate policy decision and is not specified in concrete terms by the legislator. In order to strengthen trust in the internal reporting office, however, an anonymous approach can at least be a viable option.
Restrictions in the event of violations
Section 3 para. 3 HinSchG now also explicitly clarifies that a "violation" within the meaning of the statutory provisions only occurs if it takes place "at the employer where the whistleblower is or was employed or at another office with which the whistleblower is or was in contact due to his or her professional activities".
Preference for the internal reporting office
Section 7 para. 1 sentence 2 HinSchG also stipulates that whistleblowers should use the internal reporting office if possible. This applies in any case if internal action can be taken against the corresponding violation and the person making the report does not fear reprisals. Nevertheless, it should be expressly noted that the fundamental right to choose between an internal and an external reporting office continues to exist. The legislator has merely stated (once again) that internal reporting offices are to be preferred wherever possible. The provision according to which companies "shall" create incentives to use the internal reporting office has therefore also remained unchanged.
Changes in the burden of proof
The reversal of the burden of proof provided for in Section 36 para. 2 HinSchG has also undergone a certain change. As before, it is still generally presumed that a disadvantage experienced by the whistleblower as a result of a report is to be regarded as reprisal within the meaning of the statutory provisions. However, the whistleblower must now expressly invoke this. If, on the other hand, a whistleblower does not invoke a possible causal connection, the general procedural requirements regarding the burden of proof remain in effect.
Relaxation of the deletion periods
The rigid deletion period of 3 years previously provided for has also been relaxed somewhat. The documentation to be retained in accordance with the statutory requirements may now be retained for longer if this is necessary and proportionate in order to meet the requirements under the HinSchG or other statutory regulations.
Fines and entry into force
Section 40 para. 6 HinSchG also provides that the maximum amount of the threatened fines is now only 50,000 €. In addition, companies should note in particular that the reformed HinSchG now comes into force just one month after it is promulgated.
What happens next?
After the plenum of the Bundestag approved the compromise of the Mediation Committee on May 11, 2023, the final decision now lies with the Bundesrat, which could take place as early as today. The law would then only have to be submitted to the Federal President for execution. Due to the shortened deadline for the law to come into force, the regulations could therefore - despite the lengthy process - be applied as early as mid-June 2023.
Companies with more than 249 employees should therefore deal with the selection and implementation of an appropriate solution very promptly. However, companies with an employment figure of 50 to 249 employees also only have until December 17, 2023.
We would be happy to assist you with the legal challenges associated with a whistleblower system.