EU Directive: Experts say Germany must change approach to protect Whistleblowers

WIN is delighted to publish this Spotlight on the EU Directive on Whistleblowing in Germany with support from Whistleblower-Netzwerk e.v, a founding Member of WIN, based in Berlin.  
In April 2020, rumours circulated that there was disagreement between ministers in Germany on how to implement the Directive and that the Government was in favour of minimal verbatim or ‘word-for-word’ (1:1) transposition.

Whistleblower-Netzwerk e.V. (WBN), together with Transparency International Germany and the Society for Civil Rights - Gesellschaft für Freiheitsrechte (GFF) urged law makers to expand the scope of the Directive to ensure that whistleblowers reporting breaches of national laws received the same protection as those reporting matters of EU law.

One key argument of those advocating for a more comprehensive transposition was that a 1:1 implementation of the Directive would violate the principle of equality under Art. 3 sec. 1 of the German Constitution - the ‘Grundgesetz.’

In October 2020, three legal experts Robert Brockhaus, Simon Gerdemann and Christian Thönnes published an article in German Verfassungsblog entitled ‘Ungleicher Schutz für Whistleblower – verfassungswidrig?' which elaborated this argumentation in detail and contended that a verbatim transposition could not be justified under German constitutional law. Furthermore, the GFF, a Berlin-based NGO dedicated to defending fundamental rights through strategic litigation, has announced that it will challenge any "1:1 transposition" law in the courts.

On the 12 December 2020, the German newspaper Süddeutsche Zeitung, reported on the contents of Germany’s first draft whistleblowing law. Whilst the proposal appeared to have some serious shortcomings in comparison to established international best practice consensus on effective whistleblowing legislation - such as a blanket exemption of protection for disclosure of classified information and official secrets, and failing to establish an obligation on organisations to investigate anonymous disclosures - it appears that the material scope of protection would be extended at least to some degree.

The relationship between the fundamental principle of equality - often found in a democratic states’ constitutional or human rights framework - and the implementation of the EU Directive on Whistleblowing may be of interest to whistleblowing protection advocates and policy makers in other EU member and accession states.

The following piece outlines the legal situation in Germany based on the analysis by experts Robert Brockhaus, Simon Gerdemann and Christian Thönnes. The persuasive arguments of these authors may be relevant to both transposition of the Directive and legal reform in other countries and warrants further attention of national legal experts.
Compared to the EU Directive on Whistleblowing, the current legal framework in Germany affords whistleblowers only fragmented and legally uncertain protections. Comprised primarily of case law, it is plagued by complexity and loopholes. By contrast, the Directive prohibits any form of retaliation against whistleblowers, such as dismissal, disciplinary action and criminal prosecution (Article 19). Transposition of the Directive could therefore finally provide whistleblowers with the protection they currently lack in Germany.
A "1:1 transposition" of the Directive on Whistleblowing causes unequal treatment

However, in the event of the proposed 1:1 transposition, the new protections afforded under the Whistleblowing Directive would only apply to whistleblowers in Germany if they uncovered a breach of primary or secondary Union law, as listed in the Directive´s Annexes. There would remain no improved protection for those reporting breaches of national law – a situation which would lead to unacceptable inequality. Absurdly, whistleblowers reporting minor breaches of EU law would be far better protected than others reporting serious offences under German law, if not covered by specific EU competency.

If the German legislature were to propose a national initiative for legal reform which so incoherently differentiated between individual whistleblowing situations, such a law would not pass a mandatory review of compatibility with Article 3 of the Basic Rights under the German constitution which states that “all persons shall be equal before the law.” See Article 3.1, ´Grundgesetz´(or ‘GG’). As one of 19 fundamental principles of German Basic Law passed in 1949, this provision for a general principle of equality obliges the state to treat all people equally.

As the threat of unequal treatment in the proposed whistleblowing law stems from implementation of an EU Directive, a legal question which has little been considered in Germany to date, would acquire significance:
Are German lawmakers bound by the constitutional principle of equality if unequal treatment is legally induced by an EU law?

As Brockhaus, Gerdemann and Thönnes point out in their analysis, there are currently no consistent standards to assess constitutionality of inequalities induced by EU law in Germany. They argue that the German legislature should address the German Basic Law (Grundgesetz) on unequal treatment induced by an EU law, and that any deliberation on sovereignty or relationship between the two legislatures should not alter this.

The European Union and its member states are legitimately intertwined. Regardless of the particular type of action the EU is taking - such as adopting a Directive - the standards generated by the implementation of that law in each member state are attributable to that individual countries‘ national law makers.

Under international law, Germany, as an EU member state, participates directly in the development of both primary (treaties) and secondary (recommendations, directives, decisions etc) Union law through the Council of the European Union. And, a Directive in particular, is designed to ensure that both the European and national legislators share responsibility for the legislative 'end products.'

Equality standards applicable to unequal treatment induced by EU law.

And so, what is the standard of equality in such cases?

In order to establish the equality standards applicable to unequal treatment caused by an EU law, it seems necessary to find a ‘middle ground’ between two - a) downgrading the national legislature to the status of a mere enforcer of EU law, unbound by even the most fundamental principles of a country’s national constitution, and b) establishing a de facto obligation for full harmonisation “through the back door” which would result from such a strict equality-law proportionality assessment.

A reasonable approach here would be to both recognize national sovereignty and allow the member state’s legislature the same scope to assess compatibility as would be afforded when reviewing its own laws, and, at the same time, maintain that there must be no right to arbitrariness. The latter being something a constitutional state (whether supranationally involved or not) must never be entitled to.

The limits of EU competence cannot be an objective and proper reason for unequal treatment. There must, rather, be a substantive reason as to why a matter covered by EU law should be treated differently from a purely national one.

When an EU law deals with specific issues of the internal market (to enable cross-border economic activity) such a material reason may, and often will, exist. An example of this would be German beer purity requirements (or ´Reinheitsgebot´), which may pose prohibitive challenges (only) to foreign beer makers, thus making it reasonable to apply this requirement solely to German beer makers. (See ECJ judgment of 12 March 1987 in Commission v Germany, paragraph 178/84).

However, the situation is different in the case of more ‘regulatory’ matters, such as whistleblowing rights. Irrespective of any cross-border implications, regulatory matters pose more universal legal problems, and the Union can only regulate within a limited scope and purely formal reasons. The implementation of the Directive falls into this category.

No objective reasons for a 1:1 transposition of the Directive on Whistleblowing.

Adequate protection of whistleblowers is not only a prerequisite for a functioning internal market, it is also an overarching constitutional and democratic imperative. It is for this reason that the Directive on Whistleblowing actively encourages Member States to extend its protection to other areas (Recital 5).
With a 1:1 implementation of the Directive, the German legislature would create two divergent whistleblower protection regimes and cause significant legal uncertainty for all whistleblowers.

There is no credible reasoning for this. If the standard of protection afforded to whistleblowers were to be different depending on the nature of the breach they reported - the only possible and plausible way of differentiating would be based on the seriousness of the infringement uncovered by the whistleblower and thus the public interest in addressing the breach under the rule of law. A verbatim or 1:1 transposition of the Directive would often produce the inverse; a whistleblower who reports, for example, a minor breach of the European General Data Protection Regulation would benefit from the increased protection under the Directive, yet a whistleblower who uncovered violations of solely nationally-determined criminal law - such as serious economic or violent crime - can only resort to legally uncertain, piecemeal German protections.

Thus, paradoxically, in the event of a 1:1 transposition - the greater rule-of-law benefit of the whistleblowing, the less protected the whistleblower would be.

Many thanks to Ida Nowers, WIN's Law and Policy Coordinator, for putting together this Spotlight with support from Thomas Kastning and Lotte Ziegler from Whistleblower-Netzwerk e.v .
To read more about transposition progress in Germany see the EU Whistleblowing Meter country page here
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