Montag, 15.03.2021
Whistleblower systems mandatory from December 2021 – the EU Whistleblower Directive
from
Markus SchmuckLawyer
Specialist in criminal law
Give me a call: 0261 - 404 99 25
E-Mail:
On December 16, 2019, the EU Whistleblower Directive was adopted. This is to be implemented by the nation states by December 17, 2021. The following will be affected: companies with more than 50 employees (or more than 10 million euros in annual revenue) as well as authorities and municipalities with more than 10,000 inhabitants. These will be obliged to set up channels through which violations of the law can be reported confidentially. The directive and its respective national implementation are intended to detect and prevent violations of the law while protecting the whistleblower.
It is to be expected that a report in written, oral and personal form is to be made possible and that this report is to be documented in a retrievable form. Written documentation or the creation of an audio recording is conceivable here. In this case, the confidentiality of the identity of the reporting person must be strictly guaranteed. In addition, it is to be expected that the reporting person is to be sent a confirmation of receipt of the report within 7 days.
If you take the confidentiality requirement really seriously, "internal solutions" in the company are practically impossible, since the "delegated" employee in the company or the authority can practically always be "instructed" to pass on information about content or persons to, for example, management. In addition, a data protection assessment must also be carried out, since the processing of personal data must be carried out in accordance with the EU GDPR. Outsourcing to an external ombudsman who is admitted to the bar has proven to be a sensible solution. This is the best way to ensure confidentiality and independence. The necessary investigation of the reported facts can also be carried out to the desired extent without the case being handed over to third parties. Ultimately, reporting chains and responsibilities are also short and comprehensible and secured.
In conclusion, it can be said that it makes sense for companies as well as for public authorities and local governments to introduce and test a whistleblower system. Internal solutions will bring more risks and problems than cost savings and benefits. A complete refusal to comply will be legally inadmissible by the end of 2021 at the latest.
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.