German Justice Ministry presents draft whistleblower law
Whistleblowers in Germany can hope for better days – at least many of them: For the first time, the German Justice Ministry has circulated a draft law to protect public interest disclosures. The law aims to transpose EU Directive 2019/1937 on the protection of whistleblowers, and will be the country‘s first standalone act to shield persons reporting wrongdoing from retaliation. Germany has seen numerous high profile whistleblower cases in different sectors, from geriatric nurse Brigitte Heinisch taking hers to the European Court of Human Rights to Pav Gill bringing down the fraudulent financial service provider Wirecard and challenging financial oversight mechanisms.
To little surprise, German lawmakers have decided to stay close to EU requirements – except for one crucial aspect: While the Directive only foresees protected disclosures of matters that fall under EU law, the German Justice Ministry has decided, in line with international recommendations, to also protect disclosures of breaches of national law. This important addition introduces an extra layer of legal certainty for not all, but many whistleblowers.
There are other areas in which a deviation from immediate EU requirements would have been welcome. Disclosures on matters concerning national security and defense, which are unaffected by EU legislation, will remain unprotected by German law. This will effectively mean that corruption and misconduct in the national security services including the army and their service providers, are likely to remain difficult to bring to light. A dangerous practice: In recent years, a number of incidents of public interest, such as right-wing networks in special military forces or the acquisition of flawed weaponry in the army, have made headlines.
The biggest shortcoming of the draft lies in the exclusion of anonymous disclosures: not only are companies and authorities not obliged to provide anonymous channels, they are also authorized to simply ignore them. Particularly the latter aspect comes at the significant risk of missing crucial information on substantial wrongdoing. Whistleblowers tend to only remain anonymous whenever stakes are particularly high, but in many cases, such as the Wirecard scandal or the Dieselgate affair, their contributions are vital to the detection of substantial misconduct.
It will now be upon civil society and parliamentarians to improve the draft during the course of the parliamentary debate, to make sure Germany’s first whistleblower framework will meet high standards in the protection of the public interest. Blueprint has submitted an extended opinion on the draft, which you can read here.