EU does not comply with timely implementation of the Whistleblower directive
The European Commission set a deadline for the European Union member states for the implementation of the EU Whistleblower Directive 2019/1937 until 17.12.2021. After 24 countries - including Germany - have passed this deadline, the Commission initiates formal violation procedures in February 2022: the so -called "Blue Letters" from Brussels. According to the Whistleblower guideline, companies with more than 249 employees (from December 17, 2023: with more than 50 employees) have to hold a lifting system in the company. In addition, it must be ensured that reference providers do not threaten repressions as a result of their report.
Dealing with failed deadline
In October 2019, the European Commission adopted the Whistleblower Directive. The member states had two years to introduce a national law based on the directive. In Germany, the grand coalition at the time had not been able to agree on the draft speaker proposed by the Ministry of Justice within the implementation period to implement the Whistleblower directive. The new Federal Minister of Justice Dr. However, Marco Buschmann announced that a draft was presented "as soon as possible".
In February 2022, the Commission initiated a multi -level formal contractual infringement procedure. Since 03.02.2022 there has been a corresponding note on the Commission's website. If the admonished countries do not react, the Commission can ultimately refer the case to the European Court of Justice, which may then impose sanctions to the Member States.
Consequences for employers
The regulations of the Whistleblower guideline are by no means ineffective until the implementation in national law. You can already affect companies with more than 249 employees and in the public sector. Basically, legal persons with more than 50 employees (from 2023, currently with more than 249 employees) and municipalities with more than 10,000 inhabitants are obliged to provide an internal information system and to name a special contact for the acceptance. The employer also has to protect the advisor from reprisals (such as termination, refusal of transportation, bullying, etc.). In individual cases, reference providers can already be opened to public authorities in individual cases if corresponding internal information providers are not yet available. At the same time, the disclosure obligations of the employer to protect the whistle from reprisals could already be used in the (judicial) interpretation of ancillary employment contracts.
For companies that have not set up a (sufficient) reference system, after implementing the Whistleblower directive in German law, there is a risk that the provider turns directly to external reporting points. The respective company thus loses the possibility of initially discussing the facts internally. Reputation damage can then no longer be excluded.
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