13 June 2022

Comment Letter:
Draft Bill for Improved Protection for Whistleblowers and implementing the Directive on the Protection of Persons Who Report Breaches of Union Law

Germany should have transposed the EU Whistleblower Directive into German law by 17 December 2021. A first attempt failed in the last legislative period, which ended in September 2021 with the federal general election.

In April 2022, the Federal Ministry of Justice has now published a draft bill to implement the Whistleblower Directive. The WPK stated its opinion on this on 10 May 2022.

Internal Reporting Channel

On the one hand, the WPK requested that a provision included in the first draft bill according to which the employer should create incentives for the whistleblower to turn to an internal reporting channel before reporting to an external reporting channel. The Whistleblower Directive also makes this provision, and it also helps with the duty of confidentiality, to which auditors/chartered accountants are subject in the interest of their clients.

Separation of Functions

On the other hand, we suggested that a separation of functions in the internal reporting channel in the Whistleblower Directive be designed so that the internal reporting channel can restrict itself to receiving information and passing it on to the employer - in anonymised form - and the decision about subsequent action remains with the company. This would prevent many problems that could come about if members of the profession took on the function of an internal reporting channel.

Auditors/Chartered Accountants in the Scope

It must be remembered that auditors/chartered accountants are covered by the scope of the Whistleblower Directive and, thus, also the future act, the provisions of which will have to be respected. The WPK had campaigned at European level against the unequal treatment of auditors/chartered accountants and tax advisors in comparison to lawyers, who are excluded from the scope – unfortunately, without success.