Two birds with one stone can be killed if the requirements of Hinweisgeberschutzgesetz (HinSchG) and Lieferkettensorgfaltspflichtengesetz (LkSG) are met. The complaints office under the LkSG and the internal reporting office under the HinSchG can be combined into one internal complaints office.

Implementation deadlines

The HinSchG is expected to come into force at the beginning of 2023 for companies with 250 or more employees and requires the establishment of an internal reporting office. The LkSG requires a complaints office as one of the core elements of the due diligence requirements. The scope of application for the LkSG will initially be companies with 3,000 or 1,000 employees from 2024. However, large companies are delegating their responsibility to their suppliers and the EU is also planning to tighten and extend the scope of application to companies with 500 or even 250 employees if these companies are active in particularly vulnerable sectors (e.g. textile industry).

Target groups

What the internal reporting office and the complaints office have in common is that they are to be used to report risks and violations. The target group is different. The HinSchG is aimed at employees, including temporary workers. However, it also allows the reporting office to be open. In the case of the LkSG, internal AND external persons (e.g. employees of direct or indirect suppliers) should have access to the complaints office.

Material scope of application

The material scope of application of the HinSchG is defined by § 2 and, in the current government draft, includes violations that are subject to criminal penalties or in some cases fines, especially if the violated regulation is for the protection of life, limb and health. Furthermore, the current draft includes further national regulations and legal acts of the European Union. Also in § 2, the LkSG defines the legal positions to be protected, which relate to standards to be observed in human rights, working conditions and environmental standards. Since the LkSG relates not only to suppliers but also to the company's own business operations, there will also be practical overlaps, e.g. in the case of reports of violations of occupational health and safety.

Requirements

While the HinSchG itself defines the processes, qualifications and deadlines for the internal reporting office, the more vague concept of the complaints office has been concretized since October of this year by the handout on the complaints procedure of the implementing authority. The Federal Office of Economics and Export Control (BaFa) has already written a handout on risk analysis under the LkSG and will also monitor compliance. This is usually less specific in terms of requirements, but does not contradict the HinSchG either. Affected companies must document their practical interpretation in a code of practice and make it accessible to the relevant stakeholders. More concrete, however, are the requirements of an offer that is as easy as possible for submitting reports (e.g., with regard to different reporting channels and potential language barriers) and awareness of the complaints procedure. Furthermore, a regular effectiveness review is foreseen.

Possible solution

If it cannot be ruled out that a company will also have to comply with due diligence requirements in the supply chain in the next few years, it is advisable to take the requirements for the complaints office into account now when setting up the internal reporting office. This not only creates resource-saving synergy effects, but also serves to prepare for the other elements of the due diligence requirements. In this way, risks can be identified at an early stage and countermeasures can be initiated.

In practical terms, rules of procedure can be drawn up for an integrated internal complaints office. This should consolidate the factual scope of application from both laws. To cover both, the more concrete processes and deadlines of the HinSchG should be used. To ensure broad accessibility, it is recommended that the communication channels to the hotline, including the rules of procedure, be placed in a popular manner on the company website.

The employees entrusted with the reporting office should be trained in general compliance and supply chain risks. This can be done by thematically assigning the entrusted employees or by externally assigning them, e.g. to a law firm. External contracting can also ensure the respective requirement of independence and confidentiality of the identity of whistleblowers. Many legal services also include at least annual reporting as the cornerstone of effectiveness review and continuous improvement.

For further information, please contact:

Kristin Peitz
Head of Compliance Services
kristin.peitz@ksp.de
+49 40 450 65 1553

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