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On the Failed Draft of a Law on the Protection of Whistleblowers, the Federal Election and the Pre-christmas Season

Attempt to implement Directive (EU) 2019/1937)

In order to implement the EU Directive on the protection of whistleblowers (Directive (EU) 2019/1937) adopted on 7 October 2016, the Federal Ministry of Justice and Consumer Protection (BMJV) submitted a draft of a “Law for better protection of whistleblowers and for the implementation of the Directive on the protection of persons who report infringements of Union law”. The bill was not passed due to a lack of agreement within the grand coalition. This means that the implementation of the EU Directive has failed in the current legislative period. It therefore seems unlikely that the Directive will be implemented in Germany before the end of the implementation period on 17 December 2021, twelve weeks after the elections to the German parliament (Bundestag) Umand in the middle of the pre-Christmas period.

This could lead to the conclusion that there is currently no need for action on the part of the companies concerned.

Direct application of European legislation?

This overlooks the fact that European directives can have direct effect after the expiry of the deadline for its transposition, i.e. they are applicable even without a national transposition act. Such direct applicability is affirmed if and to the extent that the respective provisions are unrestricted and sufficiently clear and unambiguous, i.e. they do not require further specification by a national transposition act.

If these conditions are met, direct applicability is to be affirmed at least in the vertical relationship (i.e. between the citizen on the one hand and the state on the other), although directives are actually addressed to the Member States (Article 288 (3) TFEU). Affected citizens, to whom the directive would grant rights, can therefore in this case invoke the directive against the state, even if it has not been transposed into national law.

In contrast, the situation is not so clear-cut in horizontal relationships, i.e. when two private individuals are opposed to each other: In this constellation, the direct applicability is heavily disputed in the literature. And the case law is not uniform either. For example, the ECJ ruled in favour of direct applicability in Leitner v. TUI Germany (judgment of 12 March 2002, C-168/00) and awarded the plaintiff (a traveller) damages against the tour operator on the basis of the Package Travel Directive, although there was no corresponding basis for a claim in Austrian law. Other judgments point in the same direction. Whether this is justified on the basis of the purpose of the Directive, effet utile, possible internal market arguments or consumer protection, is not of decisive importance for the outcome. The only important point is that direct application cannot be excluded even in horizontal relationships after the transposition period has expired.

Consequences of a direct effect

The effect of such direct effect would be, amongst others, that whistleblowers would be able to rely on Directive (EU) 2019/1937 against their employer and thus enjoy the protection to which they are entitled under the Directive.

For companies with at least 50 employees, this means that they must deal with the Whistleblower Directive and take the measures set out in it, despite the fact that it has not yet been transposed into German law. This means, among other things, that the companies must set up an internal possibility to report violations of the European legal acts covered by the Directive (this includes, for example, the areas of public procurement, transport safety or consumer protection). In particular, the confidentiality of the identity of the whistleblower and a timely response to the whistleblower must be ensured. In addition, affected entities must ensure that any whistleblowers who follow the procedure set out in the Directive are not subject to reprisals.

If companies refrain from taking action under the Directive, there is a risk that whistleblowers will nevertheless be able to rely on the protection afforded by the Directive and that companies will thus not be able to accuse whistleblowers of, for example, infringing business secrets, provided that the whistleblower follows the procedure laid down in the Directive.

There are still a few weeks left to check existing reporting possibilities for their compatibility with the Whistleblower Directive, to adapt them if necessary or to introduce new reporting possibilities. Since the works council may have to be informed (§ 80 para. 2 sentence 1 BetrVG) or may even have a right of co-determination (§ 87 para. 1 no. 1 BetrVG), it is now high time to take the appropriate measures.

Our blog contributions shall provide an overview with regard to legal topics, legislation and case law and are supposed to provide some general information rather than constituting any specific advice. Please do not hesitate to contact Maiwald and in particular the authors of the particular contributions if have any questions on the addressed topics or on other legal issues.

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Authors

Elke Wurster

Partner

Partner

Attorney-at-Law

Maîtrise en droit international

Certified Compliance Officer (univ.)