December 16, 2020

German Federal Ministry of Justice issues draft bill implementing the EU Whistleblower Protection Directive

The German Federal Ministry of Justice and Consumer Protection has issued a draft bill implementing the EU Whistleblower Protection Directive (Directive (EU) 2019/1937; the “Directive”) into German law (the “Draft Bill”).

The Directive provides for common minimum standards for national whistleblower protection regimes in the private and public sector and requires EU Member States to transpose it into national law until 17 December 2021.  Specifically, the EU Member States must ensure that adequate internal (i.e., within the private or public sector organization) and external (i.e., via designated public authorities) reporting channels are established. Furthermore, Member States are to establish effective protections for whistleblowers against retaliatory measures.  The Directive’s protections are to be granted to all whistleblowers who report on breaches of EU law or national laws based thereon.  Since EU law already governs most aspects of the European economy, the Directive extends to many different regulatory regimes, e.g. on public procurement, product and food safety, data protection, financial services, etc.

The Draft Bill seeks to implement those common minimum standards of whistleblower protection by instituting, for the first time, a comprehensive German whistleblower protection scheme.  Currently, the German whistleblower protection regime is limited to isolated provisions scattered among different codes.  Key protective measures, such as a general obligation to establish reporting mechanisms within an organization or a specific prohibition of retaliatory measures, are missing.

In line with the Directive, protecting the whistleblower’s identity, specifically prohibiting retaliatory measures, and introducing a reversal of the burden of proof for the benefit of whistleblowers are among the key protections afforded by the Draft Bill. 

According to the Draft Bill the whistleblower protections will not be limited to reporting on breaches of European Law, but also extend to reporting on breaches of German law.  This will ensure whistleblower protection in almost all areas of the law with certain exceptions in matters of national security.  As does the Directive, the Draft Bill requires that internal and external reporting channels be made available to potential whistleblowers.  In line with the Directive and current German case law, whistleblowers are required to primarily report their observations to the designated (external or internal) reporting channels.  Public whistleblowing, e.g., via the press or social media, will trigger the protections provided in the Draft Bill only in limited circumstances, e.g., if the whistleblower first made a legitimate but unsuccessful report through designated channels or in cases of imminent or manifest danger to the public interest. 

The Draft Bill includes a reversal of the burden of proof in case of retaliatory actions against a whistleblower. In legal proceedings relating to any detriment suffered by a whistleblower, it is upon the person who has taken the detrimental measure to prove that is was not retaliatory, but instead based on duly justified grounds.

The issuance of the Draft Bill is a major step forward in Germany’s implementation process.  It makes use of the freedom granted in the Directive to introduce a more robust whistleblower protection regime at the Member State level by extending it (almost) to the entire national legal system.  If the Draft Bill is signed into law, it will finally bring Germany’s whistleblower protection regime up to international standards.