Whistleblower-Netzwerk e.v. has been promoting whistleblower protection in Germany since 2006 and is closely monitoring the transposition process in Germany. They have identified a serious challenge within the German government that is working against a robust transposition of the whistleblower protection directive into German law.  

When the EU adopted the Directive on the protection of persons reporting breaches of Union law late last year, the clock started ticking.  Member States have until the 16th December 2021 to transpose these landmark whistleblower protections into domestic law.

The Directive is binding on all Member States and sets out minimum standards for protection that must be met. The European Commission has made it clear that it expects Member States to transpose the Directive in such a way that it covers breaches of national as well as EU laws and regulations and the  Directive itself clearly encourages each country to expand the scope and strength of the provisions. Civil society has long recognized the importance of whistleblower protection as a tool for protecting the public interest and democratic accountability, and a wide cross-border coalition of NGOs, trade unions, professional associations, and other public and private bodies are monitoring what governments are doing in each member state and are ready to call out state actors who seek to undermine the fundamental tenets of the law.  

Published: 30^th of April 2020
 

Stakeholders against Whistleblower Protection in Germany

‘Stakeholders against Whistleblower Protection’ was originally published in German on the 17 April 2020 by Annegret Falter, Chair of Whistleblower-Netzwerk. It has been translated and updated by Ida Nowers and Thomas Kastning for the Whistleblowing International Network.

On the 16 December 2019, the EU Directive on the protection of persons reporting breaches of Union law (EU 2019/1937) was adopted. The ‘Whistleblowing Protection’ Directive must be transposed into national law by Member States by the end of 2021. Whistleblower-Netzwerk has continued to follow and report on the developments of the Directive - see here.

The Ministry of Justice, which is expected to present a first draft Bill by the end of this summer, recently forwarded a ‘key issues’ paper to the Ministry for Economic Affairs as part of a coordination process between government departments. Following that process, the paper is now only half the length of the original proposal as many fundamental considerations of the Ministry of Justice were deleted without comment by the Ministry for Economic Affairs.

Whilst the Ministry of Justice’s 4-page paper cursorily addressed fairly preliminary areas for consideration, it had also correctly identified and evaluated various fundamental aspects of the implementation or ‘transposition’ of the Directive, including the crucial issue of extending the scope of the Directive to include breaches of national law which is, in the view of the Whistleblower-Netzwerk, absolutely vital.

As the Ministry of Justice rightly points out, a minimum ‘1:1’ or word-for-word transposition of the Directive cannot be justified as it would lead to extraordinary inequality and legal uncertainty. For example, such a ‘minimallösung,’ or minimal solution would have the consequence that minor infringements of European regulations on safety and conformity or consumer protection could be reported and protected, but serious criminal offences could not.  How could anyone explain to a whistleblower why they would be protected by the rule of law if they reported infringements of European product specifications, but could not invoke any whistleblower protection rights if they uncovered an act of violence or a serious breach of care? The key issues paper quite rightly highlighted the unacceptable burden this would place on many whistleblowers, as well as on the relevant whistleblowing reporting authorities, if each individual had to research in each instance whether or not any such legal infringement was technically breaching a European regulation.

Nevertheless, the Ministry for Economic Affairs appears to contend that any extension of the material scope to cover national legal violations is not necessary. To the contrary, all relevant passages from the key issues paper were deleted.

The Ministry for Economic Affairs was similarly impertinent with respect to other Ministry of Justice proposals, despite these having been almost unanimously recommended by experts. For example, the sensible recommendation to transpose the Directive in a comprehensive whistleblower protection law, instead of extending already fragmented provisions. To this point, the Ministry for Economic Affairs again deleted the recommendation of the Ministry of Justice, thus undermining the aim of transposition - to create an accessible and user-friendly protection framework. The recommendation to establish a whistleblowing reporting system at the federal level was also outrightly rejected.

Making active proposals for the transposition of the Directive only seems to occur to the Ministry for Economic Affairs when they see how the ‘dangers of whistleblowing’ could be further limited. For example, to ensure that reports on ‘minor’ breaches do not have to be investigated or addressed, and to delay the requirement on companies with fewer than 250 employees to establish internal whistleblowing channels until the latest possible deadline of the 17 December 2023.

Those responsible in the Ministry for Economic Affairs seem to be doing everything they can to make a whistleblowing protection law in Germany (as required by the EU) as ineffective as possible. This approach to transposition will be at the expense of the legitimate interests of whistleblowers, and of the public interest and ‘Gemeinwohls,’ or ‘common good,’ of us all. Such an approach would not even be in the interest of our economy. It has long been accepted that whistleblowing can in fact protect a company from loss of reputation and attracting other penalties, and well as from financial and legal liabilities where employees are reliably protected from retaliation. A consensus that has clearly not yet been understood in Minister Peter Altmaier's office.

The Ministry of Justice seems to have better grasped here the ‘Zeichen der Zeit,’ the ‘signs of the times,’ and the need for a serious and skillful expert examination of this topic. Yet still, when it comes to public interest disclosures containing classified information or national security, it appears that there is still to be ‘kein Pardon’ - no mercy. These areas remain excluded from both the original Ministry of Justice paper and the amended paper.  

We ask, did Edward Snowden not show us that there is a need to expose such violations and abuse of power and that these also require protection in law?

Whistleblower-Netzwerk wrote an open letter to Germany’s Federal Minister of Economic Affairs Peter Altmaier urging a change in approach to transposition of the Directive, see the letter in German here. An English translation can be found here.
 
Whistleblower-Netzwerk e.v. is a Co-Founding Member of the Whistleblowing International Network, (WIN) and Annegret Falter sits on WIN’s Board of Trustees.

For more information, and further resources on whistleblowing law and practice – see our interactive Resource Library here. If you are interested in getting involved in advocacy during the transposition of the Directive on the protection of persons who report Union Law, please contact info@whistleblowingnetwork.org.uk