Article 2 of the Whistleblowing Directive regulates a reporting obligation for the following violations

Article 16 sets out the following minimum requirements to ensure the confidentiality of a whistleblower when implementing a whistleblowing system:

It shall be ensured that the identity of the whistleblower is not disclosed to any person other than to the authorised staff responsible for receiving reports or taking follow-up action on reports, without the whistleblower’s express consent. This also applies to any other information from which the identity of the whistleblower can be directly or indirectly inferred.

Competent authorities receiving information on infringements and containing business secrets shall not use or disclose such business secrets for purposes beyond what is necessary for proper follow-up.

It is still open whether the German legislator will implement the possibility contained in the EU Whistleblower Directive to delay the obligation to introduce an internal reporting channel for legal entities with a number of employees between 50 and 249 by two years. It should therefore be noted that the obligation for companies with more than 250 employees will in any case come into force from December 2021.

Article 19 explicitly regulates the prohibition of reprisals. A whistleblowing system must also include measures prohibiting any form of reprisals against the persons referred to in Article 4, including threats of reprisals and attempts at reprisals. This includes in particular the following reprisals:

1. Suspension, dismissal or similar action;
2. demotion or denial of promotion;
3. Transfer of duties, change of place of work, reduction of salary, change of working hours;
4. refusal to participate in further training;
5. negative performance appraisal or issuance of a bad reference;
6. Disciplinary action, reprimand or other sanction including financial sanctions;
7. coercion, intimidation, bullying or exclusion;
8. Discrimination, disadvantageous or unequal treatment;
9. Failure to convert a fixed-term employment contract into a permanent employment contract in cases where the employee had a legitimate expectation of being offered a permanent employment contract;
10. Non-renewal or early termination of a fixed-term employment contract;
11. Damage (including reputational damage), particularly on social media, or causing financial loss (including loss of contracts or revenue);
12. blacklisting of the whistleblower on the basis of an informal or formal sectoral or industry-specific agreement, with the consequence that the whistleblower will no longer be able to find employment across the sector or industry;
13. Early termination or cancellation of a contract for goods or services;
14. withdrawal of a licence or permit;
15. psychiatric or medical referrals

With the future VerSanG, stricter rules apply to internal investigations. The combination of internal association investigations and corporate defence, according to the explanatory memorandum, weakens the credibility of the results of internal association investigations and can lead to conflicts with the criminal defence mandate.

Internal association investigations serve to objectively clarify the facts of the case, including all incriminating and exculpating circumstances. Due to the potential conflicts arising from a combination of internal association investigations and criminal defence, the separation of internal association investigations and representation in administrative offence proceedings is already widespread today (cf. Leitner/Rosenau-Wimmer, Wirtschafts- und Steuerstrafrecht, § 152 StPO marginal no. 16).

Update: With the Securities Institutions Act, the provisions of § 13 Whistleblower system and record-keeping obligation are now also