The federal cabinet has approved a bill to ban retaliation against whistleblowers. A Snowden would not be protected.
Whistleblowers who draw attention to abuses in companies or in public administration should be better protected from retaliatory measures such as dismissal or other disadvantages. On Wednesday, the federal cabinet launched a draft law to improve the protection of whistleblowers. The federal government wants to make it clear: “Reprisals directed against whistleblowers are prohibited.” This also applies to corresponding threats and attempts. Violations are subject to fines and claims for damages.
Mandatory for registration offices
According to the government draft, the core of the protection system are internal and external reporting offices, which are available to whistleblowers to report violations. Whistleblowers should be free to choose whether they want to raise the alarm within the company or the authority or with an independent body. The internal and external reporting bodies must review the information received and take the necessary follow-up measures.
The obligation to set up internal registration offices affects both the private sector and the entire public sector, provided that a company or office usually employs at least 50 people. A transitional period until mid-December 2023 is planned for companies with up to 249 employees. They should also be able to operate a common registration office together with other companies. Third parties or the parent company can also be commissioned.
A central external reporting office for the federal and state governments, including an advisory function, is planned at the Federal Office of Justice (BfJ). In addition, the existing reporting systems at the Federal Financial Supervisory Authority and the Federal Cartel Office with special responsibilities are to be continued. The federal states are free to set up their own external registration offices for municipalities. Whistleblowers who do not want to “deal with questions of jurisdiction” or who do not trust their company’s reporting channels can also turn to such institutions.
Cost of 260 million euros
Whistleblowers who do not use these official reporting channels but go directly to the public should only be protected from the consequences under certain conditions. This includes sufficient reason to assume that the grievance they have made public “may constitute an immediate or manifest threat to the public interest”. This could be the case, for example, if a company plans to dispose of toxic substances in a river. The government estimates that the costs for setting up the registration offices alone for the economy and the public sector will total around 260 million euros.
The identities of the persons providing the information and of all persons affected by a report should be effectively protected in order to ensure the acceptance of the system. The data may only be released in exceptional cases, for example in criminal proceedings.
The Federal Cabinet improved the controversial draft bill from the Ministry of Justice on a number of points. For the most part, anonymous tips are now to be followed. However, this must not jeopardize the priority processing of non-anonymous reports in order not to overload the system.
No protection for a Snowden
According to the government paper, reports from whistleblowers are also possible if the authorities have classified the underlying documents as confidential information with the level “for official use only” (VS-NfD). However, a German Edward Snowden would still not be protected: According to Paragraph 5, security interests and confidentiality obligations have priority when it comes to information from secret services. According to the reasoning, whistleblower protection is already regulated “adequate for the task” in the Act for the Parliamentary Control Committee (PKGr).
With the draft, which still has to go through the Bundesrat and the Bundestag, the Federal Government intends to implement the EU Whistleblower Directive in principle. Germany is behind schedule. The EU Commission therefore initiated infringement proceedings against the Federal Republic in February. The guidelines have been in the EU Official Journal since November 2019 and came into force in December 2021.
In the spring of 2021, the former grand coalition failed due to an implementation law. The SPD wanted the protection to also apply to violations of German law and not just in areas such as financial services and tenders, product and food safety, data protection, the environment and health, which are already regulated across the EU. The CDU and CSU were against it. Despite the fact that agreement was missed, it has been possible for the majority of the standards to be asserted directly, at least vis-à-vis the state, for a good six months now.
The Greens member of the Bundestag, Till Steffen, now praised the fact that the federal government had finally presented the “long-awaited law”. Despite some corrections, there is still room for improvement. For example, the detection of right-wing extremist chats by police officers would not be adequately protected, “although these reports are important to protect our democracy.” Revelations such as those by Frances Haugen on Facebook are also not included. The right-wing politician was confident that Parliament would find good solutions here.
(mho)
