Blueprint presents Model Law for the transposition of the EU Whistleblowing Directive in Germany
We‘re very proud to announce the release of our Model Draft law to protect whistleblowers in Germany and transpose the EU Directive of the European Parliament and Council on the protection of persons reporting breaches of Union law (Whistleblowing Directive). The Directive had been introduced in 2019, and Member States are required to transpose its provisions of the Directive into national law until the end of 2021.
While Germany‘s Justice Ministry had presented a draft transposition law earlier this year, the proposal failed to be submitted to parliament, due to disagreements between the governing coalition partners. It will now be upon the new government, to be elected September 26th, to pass a national transposition law in due time.
Our draft released today covers all relevant provisions foreseen according to the EU Whistleblowing Directive. Where Union Law does not consider relevant international standards, our model law closes the gap. In detail, this means the following:
Material scope: Due to its legal mandate, the European Union can only provide for legal guidance on selected issues. Hence, the Whistleblowing Directive is limited to the protection of persons reporting breaches of Union law. Whistleblower protection, however, can only be effective if it is horizontal, to ensure equal treatment and legal certainty for all reporting persons. Our draft thus foresees the protection of reports on breaches of all public norms in the German legislative framework. Paying tribute to the complex nature of wrongdoing and related evidences, it allows for reports on actual as well as potential wrongdoing.
Anonymity: While the EU Directive foresees that personal data needs to be handled confidentially and that persons reporting anonymously are entitled to equal protection measures should their identity be revealed, the provisions still fall short of international standards. Our model draft thus includes important additional rules: it provides for an obligation to introduce anonymous reporting channels as well as to follow up on them. The latter is especially important – especially when facing a high risk of reprisals, whistleblowers often choose to report anonymously. Barring them from doing so or exempting anonymous disclosures from being investigated may come at the cost of important information being missed out on, leading to the escalation of dangerous cases of wrongdoing.
National Security: Our draft also protects reports on wrongdoing in the national security sector, which according to Union law remains under national scrutiny. Wrongdoing occurs in all sectors, and whistleblowers from national security services deserve the same legal protection as those in other parts of society. Recognizing that disclosing information in these sectors is a particularly delicate matter, provisions in our draft are guided by the Global Principles on National Security and the Right to Information (Tshwane Principles). This ensures a balanced representation of both national interests and whistleblower rights.
Provisions on whistleblowers‘ legal liability: the Directive’s maintenance of legal liability where the acquisition of data is a “self-standing criminal offence” is potentially problematic. If not treated carefully, this provision could mean that whistleblowers are penalised for doing what they need to do in order make their report. It is not hard to find examples where whistleblowers have faced this kind of issue, most notably the case of LuxLeaks whistleblower Antoine Deltour, whose case served as a model for Brussels lawmakers. Our model draft introduces clarity on the matter, ensuring that whistleblowers cannot face charges for reasonable legal breaches necessary to make a protected disclosure.
Oversight and support: in many cases, whistleblowers require additional support, be it financially or psychologically, to make reports in the appropriate manner and bridge consequences of retaliation. To ensure that their concerns are treated reliably, international standards recommend the introduction of dedicated, centralized oversight as well as the establishment of support funding mechanisms for legal costs or deficiency in livelihood. Our model draft thus introduces specific regulations for the introduction of a national oversight authority as well as a whistleblower support fund.
We hope that our model draft can serve as a guideline and inspiration for lawmakers and other stakeholders advocating for strong whistleblower protection in Germany. Furthermore, it may be used as a template in other national contexts; for this, we provide plain text versions of the law in German and English. For questions and comments regarding the draft, please contact media@blueprintforfreespeech.net.