With a one-year delay, the EU Whistleblower Directive (Directive (EU) 2019/1937) is now being implemented in Germany with the Hinweisgeberschutzgesetz (HinSchG). The core element is the establishment of an internal reporting office for all employment providers with 50 or more employees. For companies with 50 - 249 employees, there will be a transition period until the end of 2023.

The tasks of the internal reporting office are to receive and process information about potential violations of the law. The minimum addressees for the use of the internal reporting office are the company's own employees and leased temporary workers. Due to the requirement for a so-called complaints office in the Lieferkettensorgfaltspflichtengesetz (LkSG), it is recommended that the reporting office be opened up and thus also made accessible to employees of direct and indirect suppliers.

No anonymous reporting channel required

Contrary to numerous assumptions and interpretations, the draft law does not contain a requirement to establish anonymous reporting channels. Reports must be enabled in oral or text form. Reports received anonymously may be processed, but are not required to be, and if so, only with lower priority. Thus, there is no need to set up an IT system or use a cloud solution for internal reporting.

Strict formal requirements

However, the clear requirements for the operation of the reporting office remain. The legislator prescribes deadlines for feedback to whistleblowers of up to less than 8 days. Furthermore, there are requirements for documentation, deletion and preservation of the identity of the whistleblower. The employees entrusted with the reporting office must have the necessary expertise, i.e. necessarily be trained in compliance, and independence.

This requirement to exclude conflicts of interest should be difficult to implement, especially for smaller companies covered by the law. However, the legislator also allows expert third parties to be entrusted with the operation of the reporting office. This is also recommended due to the reversal of the burden of proof located in the law in the case of potential professional disadvantages of a whistleblower. In this case, the employer would have to prove that the measure was not a reprisal due to a previous report. In the case of third-party operation, only the third party should maintain contact with the whistleblower and submit the facts anonymously to his client for further decision.

Up to 6-digit fines

In addition to the risks under labor law, failure to comply with the law can result in an administrative offense. Fines of up to 100,000 euros are estimated. Furthermore, the establishment of an internal reporting office is also recommended from a practical point of view and to avert reputational risks. Under the law, whistleblowers could also turn to an external reporting office.

KSP can operate your reporting office

As an established law firm with a scalable IT infrastructure, we have the professional know-how as well as the technical capability to operate your internal reporting office in compliance with the law - and at attractive conditions.

Feel free to contact us or find out more about our solution here.

Go back