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Whistleblower Protection Act – easy implementation by an external ombudsman for the company

from
Markus Schmuck
Lawyer
Specialist in criminal law

Give me a call: 0261 - 404 99 25
E-Mail:

As has already been reported on many print and online platforms, there is a draft for a new Whistleblower Protection Act. The law is expected to come into force in 2022 and will affect private companies and public administration.

One reason for the low rate of detection of corruption offences, among others, is the particular way in which they are committed, which is based on conspiracy, and also the fact that there is no victim in the classic, tangible form. In order to detect corrupt behavior as early as possible, public administration and companies depend on the cooperation of their own employees as well as citizens, suppliers and other third parties. However, since whistleblowers often fear possible personal disadvantages if they pass on their knowledge, the implementation of the duty arising from the new law by an ombudsperson is an obvious solution.

The ombudsman

• sets up a point of access for whistleblowers and maintains it over the long term, and
• receiving information from the whistleblower regarding suspected corrupt actions
• opens up the possibility of written, personal, electronic and telephone communication
• conducts confidential conversations with the whistleblower
• meets the possible request for anonymity from whistleblowers
• lodges criminal complaints and reports in accordance with the mandate
• conducts the dialog with the whistleblower in the further course of the process.

It is possible to appoint one or more ombudspersons to accept and process confidential information regarding relevant facts related to the company. The ombudsperson is then bound by official duty (Lawyer) and in addition by contractual regulation to confidentiality, so that although the facts of the case are forwarded, the identity of the reporting person is not disclosed for fear of reprisals. Ultimately, the use of an (external) lawyer is recommended. This is the only way to ensure that the confidentiality agreement with the whistleblower is guaranteed. Internal company processes are not disrupted and costs can be minimized.

The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.