German Justice Ministry Agrees on Draft Law Transposing EU Whistleblowing Directive

As the Süddeutsche Zeitung reported, the German Justice Ministry has finalized a first draft for a comprehensive national whistleblower protection law. The draft comes in response to the obligation of all EU Member States to introduce legislation in compliance with last year‘s EU whistleblowing Directive. EU countries have until December 2021 to transpose the Directive, and delays will result in fines for the respective countries.

Luckily for future German whistleblowers, the draft positively resolves one of the Directive‘s major challenges. As a result of the EU‘s limited legal mandate, the Directive itself only protects whistleblowers reporting on breaches of Union law. To ensure equal treatment of all whistleblowers, Brussels lawmakers, civil society and other experts had strongly recommended expanding the material scope in transposition to include breaches of national legislation. In summer, Germany‘s Economy ministry reportedly rejected such an approach. The recent proposal of Justice Minister Christine Lambrecht now seems to follow international and EU recommendations regardless.

Other shortcomings remain: whistleblowing on matters of national security remains exempt from the list of protected disclosures. This is a missed opportunity, considering the increase of right-wing networks among the German police forces. Earlier this year, a national survey had revealed that two out of three German citizens are in favour of establishing an independent oversight mechanism for police misconduct.

Furthermore, rules foreseen on anonymous reporting may prove problematic: “In order not to overburden the new whistleblowing system“, as stated in the draft, anonymous disclosures do not have to be followed up on. Considering that a significant number of whistleblowers feel safer when they make an anonymous report, the German approach may lead to important reports being missed out on.

Germany so far lacks a comprehensive whistleblower protection law. Rules apply in accordance with EU law on whistleblowing in the financial sector. Other than that, whistleblower cases are decided in the courts – more often than not to the disadvantage of whistleblowers.