On December 16, 2022, the Bundestag passed the long-awaited Whistleblower Protection Act (we reported). Today, February 10, 2023, the Bundesrat was supposed to approve the law. Despite ongoing infringement proceedings by the EU Commission, the Bundesrat did not give its approval to the Whistleblower Protection Act. This means that the law has failed for the time being and cannot enter into force in April 2023 as planned.
Why no approval?
The main point of criticism was the high economic burden on small and medium-sized enterprises in economically difficult times. The representatives from Hesse and Bavaria criticized, among other things, the overly broad scope of the law, which would go far beyond the EU requirements. Furthermore, the required option of anonymous whistleblowing would mean that IT-based solutions would have to be introduced, which would result in further costs for the companies. The possible fine of up to 20,000 euros for failure to introduce an internal reporting channel also met with resistance, as such a consequence is not required by the EU directive and external reporting channels would be available in this case. Finally, the presumption that a reprisal would be taken against a whistleblower based on his or her tip-off was also met with incomprehension. This distribution of the burden of proof would lead to abuse by employees who are threatened with dismissal using the whistleblower system and thus putting themselves in a better position.
Outlook
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