Whistleblowing

The status of whistleblowers in Germany, as in other EU member states, is primarily governed by European law. The relevant legislation is Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons reporting infringements of Union law (EU Whistleblower-Directive).

The German legislature has incorporated the EU-Whistleblower-Directive into German law by enacting the Whistleblower Protection Act (“Hinweisgeberschutzgesetz”) which – largely – entered into force on July 2, 2023.

If the Whistleblower Protection Act (hereinafter referred to as “HinSchG”) should meet specific concerns under European law, this will be pointed out separately in the following.

For a long time, the specific legislation on whistleblowing only covered civil servants (article 54-bis of Legislative Decree No. 165 of 30 March 2001, as introduced by Law No. 190 of 6 November 2012) and, following Legislative Decree No. 72 of 12 May 2015, employees in banks and financial institutions.

Concerning the private sector in general, Law No. 179 of 2017 regulated the status of the whistleblower within the framework of Legislative Decree No. 231 of 8 June 2001, which provides for entities to adopt organisational models that are exempt from liability for certain criminal offences.

Now, Directive (EU) 2019/1937 of the European Parliament and of the Council on the protection of persons reporting infringements of Union law (the EU Whistleblower Directive) has been adopted.

For the implementation of this directive, Legislative Decree 10 March 2023, No. 24 was recently issued (in force as from 15 July 2023). This is intended to be the regulatory point of reference for whistleblowing, both for the public and private sectors.

In principle, companies that regularly employ 50 or more employees are obliged to set up an internal reporting system (section 12 (1), (2) HinSchG). For companies with between 50 and 249 employees, this obligation will only apply from 17 December 2023 (section 42 HinSchG).

For certain employers, particularly in the financial and insurance sectors or for data provision companies, the obligation to set up an internal reporting office applies irrespective of the number of employees as of the entry into force of the Act (section 12 (3) HinSchG).   

The whistleblowing procedure provided for by Legislative Decree No. 24/2023 must be adopted by the following public sector entities:

• public administrations;
• independent administrative authorities;
• public economic bodies;
• bodies governed by public law;
• public service concessionaires;
• publicly controlled companies;
• in-house companies, even if listed.

Regarding private entities, the whistleblowing procedure must be adopted by:

(a) entities that have employed, in the past year, an average of at least 50 employees with indefinite or fixed-term employment contracts;

(b) entities operating in the banking, financial, transport, safety or environmental protection sectors, even if they did not have the average number of employees referred to under (a) in the preceding year;

(c) entities that fall within the scope of Legislative Decree No. 231/2001 (ie, entities with legal personality, companies and associations, including those without legal personality) and adopt organisational and management models provided for therein, even if in the last year they have not reached the average number of employees referred to under (a).

According to the explanatory memorandum of the Whistleblower Protection Act, it is legally permissible to implement an independent and confidential internal reporting office as a "third party" within the meaning of article 8(5) of the EU Whistleblower Directive at another group company (eg, parent company, sister company or subsidiary), which may also work for several independent companies in the group (section 14 (1) HinSchG). However, the European Commission has already announced in two statements during the legislative process that a group-wide whistleblower system does not meet the requirements of the EU Whistleblower Directive. The question of the compatibility of the regulation with EU law will only arise in practice at a later stage, provided that this question needs to be clarified in court. 

The Whistleblower Protection Act in line with the EU Directive further provides that several private employers with between 50 and 249 employees employed on a regular basis may commonly implement and operate an internal reporting office to receive notifications. However, the legal obligation to take action to remedy the violation and the corresponding duty to report back to the person making the report has to remain with the individual employer.   

Legislative Decree No. 24/2023 does not set out the possibility of adopting a whistleblowing procedure at a Group level, covering all subsidiaries.

However, this Decree allows private-sector entities that have employed, over the previous year, an average of fewer than 249 employees, under permanent or fixed-term contracts, to share internal reporting channels and its management.

If there are no whistleblowing procedures in the company (ie, an internal reporting system is not implemented and operated), this constitutes an administrative offence punishable by a fine. This fine may amount to up to 20,000 EUR (section 40 (2) No. 2, (5) HinSchG).

At this point, it should be noted that there is a high incentive for employers to implement an internal reporting channel, since the external reporting channel is available to the whistleblower in any case. Consequently, if an internal reporting office were not implemented or operated, the whistleblower would be forced to report directly to the external reporting office. As a result, the employer would not be able to make internal corrections without the reported information leaving the company.

Employers may be fined between EUR 10,000 and EUR 50,000 where:

• reporting channels have not been set up;
• procedures for making and handling reports have not been adopted or the adoption of such procedures does not comply with those set out in Legislative Decree No. 24/2023; and
• the verification and analysis of the reports received have not been carried out.

Although the implementation of a whistleblower system is based on a legal obligation, the works council only has to be involved under certain circumstances.

At first, the employer is, in principle, already obliged to inform the works council in good time and comprehensively about everything it requires to carry out its duties. This information requirement should enable the works council to review whether co-determination or participation rights exist or whether other tasks have to be carried out according to the German Works Constitution Act (BetrVG).

For instance, instructions concerning the orderly conduct of employees are subject to co-determination. These instructions are intended to ensure an undisturbed work process or to organise the way employees live and work together in the company.  If, in the course of the implementation of a whistleblower system, the already existing contractual obligations are extended or regulations regarding the specific reporting procedure are introduced (eg, in the form of a reporting obligation on the part of employees), the organisational behaviour would be affected and the works council must therefore be involved (section 87 (1) No. 1 BetrVG).

Furthermore, in the context of setting up an internal reporting channel, the Whistleblower Protection Act only stipulates that whistleblowers must be given the option of submitting a report to the whistleblowing system in text form or verbally. This could, of course, also be provided via digital channels - eg, via software- or web-based solutions. Should the introduction and use of such technical equipment in the relevant case allow the employer to monitor the behavior or performance of employees (eg, those who deal with the complaint), further co-determination rights of the works council according to section 87 (1) No. 6 BetrVG can be triggered.   

Legislative Decree No. 24/2023 requires that entities adopting whistleblowing procedures must involve trade union representatives before activating the internal reporting channel.

The Whistleblower Protection Act does not oblige the company itself to publish any information regarding the internal reporting office or the internal reporting channel implemented. However, the internally implemented reporting office must have clear and easily accessible information available on the external reporting procedure and relevant reporting procedures of European Union institutions, bodies or agencies (section 13 (2) HinSchG).

The current explanatory memorandum to the Whistleblower Protection Act also contains the more detailed, but not legally binding, reference that the information can be made available via a public website, company intranet or a bulletin board that is accessible to all employees. In this context, it is recommended that the company also refers to the internally implemented reporting office or the internal reporting channel in the same way. This helps to counteract the risk that potential whistleblowers will report primarily via the external reporting channel.

Furthermore, the German Supply Chain Due Diligence Act (LkSG) also provides for the implementation of complaint mechanisms so that the regulatory requirements of companies can also be met through a uniform reporting system. Within its scope of application, the LkSG also provides for the publication of procedural rules for such a reporting system in text form as well as for annual reporting obligations on what measures the company has taken as a result of complaints.

Entities adopting whistleblowing procedures must make clear information available on such procedures.

This information should be displayed and made easily accessible in the workplace, and also be made available to persons who, although not attending workplaces, may nevertheless make reports.

If entities adopting whistleblowing procedures have their own website, they should also publish information on whistleblowing procedures on a dedicated section of their site.

In principle, the Whistleblower Protection Act intentionally does not specify which persons or organisational units are best qualified to carry out the tasks of the internal reporting office or to manage the corresponding reporting channel. However, the internal reporting office may not be subject to any conflicts of interest and it also must be independent. The EU Whistleblower-Directive mentions, for instance, the head of the compliance department or the legal or data protection officer as possible internal reporting offices.

If, in addition to the (internal) persons responsible for receiving and processing internal reports, other (external) persons have to be involved in a supporting activity, this supporting activity is legally only permissible to the extent that is necessary for the supporting activity. This applies, for example, to IT service providers that provide technical support for reporting channels.

It is also legally permissible to appoint a third party to carry out the tasks of an internal reporting office, including the reporting channel (section 14 (1) HinSchG). Third parties may include lawyers, external consultants, trade union representatives or employee representatives.

However, engaging a third party does not relieve the employer of the obligation to take appropriate action to remedy a possible violation. In particular, for follow-up actions to check the validity of a report, there must be cooperation between the commissioned third party and the employer.

Legislative Decree No. 24/2023 provides that entities adopting whistleblowing procedures should activate their own internal reporting channels. The management of these channels should be entrusted to a dedicated independent internal person or office with specifically trained staff, or an independent external entity with specifically trained staff.

Private-sector entities that have employed no more than 249 employees under permanent or fixed-term employment contracts over the past year may share their internal reporting channels and management.

The internal reporting office implemented by the employer is, initially, authorised to process personal data insofar as this is necessary for the fulfilment of its task under the Whistleblower Protection Act (10 HinSchG). The wide-ranging processing authority allows the personal data contained in the reports to be both received and analysed by the reporting office. In addition, new personal data may be recorded and further processed during the implementation of the follow-up measures.

The employer's obligation to protect the data collected in the course of the whistleblowing procedure is then directly based on the European General Data Protection Regulation (GDPR) and the German Federal Data Protection Act. This means, for instance, that data processing has to be limited to the extent necessary to fulfil the tasks of the internal and external reporting channel – data minimisation principle, (article 5 (1) lit. c) GDPR).

Finally, the processing of personal data is complemented by the confidentiality requirements of internal (and external) offices, (section 8 HinSchG).

Legislative Decree No. 24/2023 contains several provisions regarding the protection of data collected related to the whistleblowing procedure.

The identity of the whistleblower cannot be disclosed to persons other than those competent to receive or follow-up on the reports until the conclusion of the proceedings initiated based on the report without their express consent.

Legislative Decree No. 24/2023 also provides specific rules for the protection of the identity of the whistleblower in criminal and disciplinary proceedings and proceedings before the court of auditors.

Whistleblowing reports also may not be used beyond what is necessary for adequate follow-up.

Reports and related documentation should be kept for the time necessary to process the report and in any case no longer than five years from the date of the communication of the outcome of the whistleblowing procedure.

An administrative fine of between EUR 5,000 and EUR 50,000 may be imposed where there has been a violation of certain provisions regarding the protection of data collected related to the whistleblowing procedure.

The reporting channels must be designed in such a way that only the persons responsible for receiving and processing the reports as well as the persons assisting them in fulfilling these tasks have access to the incoming reports. It must, therefore, be ensured that no unauthorised persons have access to the identity of the person making the report or to the report itself. This has implications for the technical design of the internal reporting channel.

Also, the persons entrusted with running the internal reporting office must indeed be independent in the exercise of their activities and the company must ensure that such persons have the necessary expertise. Therefore, smaller or medium-sized companies should especially assess whether it will be more efficient to assign an experienced external ombudsperson to receive and initially process incoming reports. However, the ombudsperson who takes the call in this case is a witness bound to tell the truth, even if this is, for example, a company lawyer.

According to the German Whistleblower Protection Act, the internal whistleblowing reporting office is not obliged by law to accept or process anonymous reports; however, they “shall” be processed.  Companies should therefore assess carefully whether they provide systems that enable anonymous reports, as this may increase the number of abusive reports and make enquiries impossible. On the other hand, some ISO standards require the receipt of anonymous reports. Therefore, should a company seek certification according to these ISO standards, the whistleblower procedure to be set up must allow for the processing of anonymous reports.

The internal reporting channel must be able to ensure – including through the use of encryption tools – the confidentiality of the identity of the person making the report, any person involved and any person mentioned in the report, as well as the contents of the report and any relevant documentation.

Entities obliged to adopt whistleblowing procedures must entrust the management of the internal whistleblowing channel to persons who are independent and have specific training.

The Whistleblower Protection Act´s  material scope of application goes beyond European legal requirements. It extends the material scope of application to all violations that are subject to punishment (section 2 (1) No. 1 HinSchG). Additionally, violations subject to fines are included insofar as the violated regulation serves to protect life, body, health or the rights of employees or their representative bodies (section 2 (1) No. 2 HinSchG). The last alternative covers not only regulations that directly serve occupational health and safety or health protection, but also related notification and documentation requirements, for example under the Minimum Wage Act. Thus, as a result, section 2 (2) No. 2 HinSchG covers the majority of administrative offences in the context of employment.

Finally, the Whistleblower Protection Act also provides for a list of infringements that predominantly correspond to the relevant areas of law according to the recitals of the EU Whistleblower Directive.

Breaches subject to whistleblowing are violations of national or European Union regulatory provisions that harm the public interest or the integrity of a public administration or private entity.

Italy has extended the scope of the directive to include violations of national rules.

The Whistleblower Protection Act itself does not distinguish between different sectors regarding the internal reporting process. However, it contains an enumerative list of regulations from other statutes that take precedence over the Whistleblower Protection Act for the reporting of information on violations; these regulations are therefore lex specialis compared to the Whistleblower Protection Act (section 4 (1) HinSchG). Priority special provisions are, among others, regulated by the Money Laundering Act, the Banking Act, the Insurance Supervision Act and the Stock Exchange Act.    

There is a special whistleblowing procedure for certain sectors such as banks, financial institutions and insurance companies, set out in article 52-bis of Legislative Decree No. 385/1993, in article 4-undecies of Legislative Decree No. 58/1998 and in article 10-quater of Legislative Decree No. 209/2005. In these cases, breaches subject to whistleblowing are those related to a violation of the special rules of the relevant sector.  

A whistleblower is a natural person who, in the context of his or her professional activity or in the preliminary stages of professional activity, has obtained information about violations and reports or discloses it to the – internal or external – reporting offices provided for under the Whistleblower Protection Act (section 1 (1) HinSchG).

The Whistleblower Protection Act also applies to the protection of persons who are subject to a report or disclosure, as well as other persons who are affected by a report or disclosure, (section 1 (2) HinSchG).

A whistleblower is defined as a person who makes a report or public disclosure of violations based on information acquired within a working context.

Whistleblowers may be employees, but also, for instance, self-employed persons, volunteers, members of corporate bodies or employees of suppliers. In addition to persons who obtain knowledge in advance, such as in a job interview or during pre-contractual negotiations, the scope of protection also includes those for whom the employment or service relationship has been terminated. As a result, the status of a whistleblower is not dependent on formal criteria such as type of employment.

Within entities that must adopt whistleblowing procedures, the following may qualify as a whistleblower:

• employees;
• self-employed persons and contractors;
• freelancers and consultants;
• volunteers and trainees, paid and unpaid;
• shareholders and persons with administrative, management, control, supervisory or representative functions, even where such functions are exercised on a de facto basis.

The persons referred to above are also considered whistleblowers in the following circumstances:

• when the legal relationship with entities that must adopt whistleblowing procedures has not yet begun, but information on violations has been acquired during the selection process or in other pre-contractual stages;
• during the probationary period; and
• after termination of the employment relationship, if the information was acquired in the course of such a relationship.

To be qualified as a whistleblower, the person providing the information must have obtained the information in the context of his or her professional activity or in the preliminary stages of professional activity. Information about violations falls within the substantive scope of the Act only if it relates to the employing entity or another entity with which the whistleblower is or has been in professional contact.

The requirements to be a whistleblower are:

• being a person listed in question 13;
• making a report concerning one of the violations relevant under the decree, of which one has become aware through work; and
• complying with other provisions of Legislative Decree No. 24/2023.

The Whistleblower Protection Act does not state that the employer must set up reporting channels in such a way that anonymous reports are admissible (section 16 (1) HinSchG). Also, external reporting offices do not have to process anonymous reports (section 27 (1) HinSchG). According to the Whistleblower Protection Act, however, anonymous reports “shall” be processed by the internal and external reporting offices. Against this background, employers are entirely free to choose whether to provide systems that allow for the submission and processing of anonymous reports or not.

No express provision is made for anonymous reports: the legislature has decided not to exercise the option granted by the directive in this respect.

However, Legislative Decree No. 24/2023 also expressly extends the protection regime provided for whistleblowers to anonymous reporters whose identity has been discovered and who have suffered retaliation because of it.

In principle, the whistleblowers do not have to be direct witnesses to a violation. However, they must have obtained information about violations in connection with or before their professional activities. Violation information is defined as a reasonable suspicion or knowledge of actual or potential breaches and attempts to conceal such breaches that have occurred or are very likely to occur (section 3 (3) HinSchG). However, only whistleblowers acting in good faith are protected from any discriminatory measures as a result of their report.

Legislative Decree No. 24/2023 requires only that the whistleblower has become aware of the reported violations through work.

The requirement of being a direct witness is not laid down by the decree.

However, it is, provided that, at the time of the report, the whistleblower had reasonable grounds to believe that the information on the reported violations was true and fell within the objective scope of Legislative Decree No. 24/2023.

The whistleblower procedure requires – in its broad outlines – that the personal and material scope of the Whistleblower Protection Act is applicable. Assuming this, the whistleblower must have obtained information about violations in connection with his or her professional activities or in advance of professional activities. In a further step, the whistleblower must report or disclose these violations to the internal and external reporting bodies responsible. The Reporting Office will issue an acknowledgement of receipt to the person making the report within seven days. Within three months of the acknowledgement of receipt, feedback will be provided to the whistleblower on planned and already taken follow-up measures and their reasoning. This information will be documented in compliance with the principle of confidentiality. This documentation will be deleted two years after the conclusion of the proceedings.

In the context of the whistleblowing procedure, the managers of the internal reporting channels issue the whistleblower with a notice of receipt of the report within seven days of the date of receipt. It is possible to request additional information from the whistleblower, if necessary.

Diligent follow-up must then be given to the reports received.

Finally, feedback must be given to the whistleblower within three months from the date of the notice of receipt or, in the absence of such notice, within three months from the expiry of the seven-day period starting from the submission of the report.

There is no legally binding hierarchy between internal and external reporting channels. Therefore, the whistleblower has, in principle, the right to choose whether to report the violations externally or internally. However, in cases where effective internal action can be taken against violations, whistleblowers are to give preference to reporting to an internal reporting office. If an internally reported violation is not remedied, the whistleblower making the report is free to contact an external reporting office (section 7 (1) HinSchG).

Under Legislative Decree No. 24/2023, preference is given to internal reports, while external ones seem to be possible only occasionally, under certain circumstances.

In particular, the use of an external reporting channel is possible if one of the following conditions is met:

• absence of the internal reporting channel within the working context of the whistleblower;
• the whistleblower has already made an internal report and this has not been followed up or has resulted in a final negative action;
• the whistleblower has reasonable grounds to believe that, in the case of an internal report, the report would not be effectively followed up or that the report might give rise to a risk of retaliation; or
• the whistleblower has reasonable grounds to believe that the breach may constitute an imminent or manifest danger to the public.

In addition to internal and external reporting channels, Legislative Decree No. 24/2023 allows for the possibility of public disclosure. Protection is only guaranteed for such disclosures if:

• the person making the disclosure has previously made an internal and external report or has made an external report directly and no reply has been received within the time limits provided for in the decree;
• the person making the disclosure has a well-founded reason to believe that the breach may constitute an imminent or manifest danger to the public; and
• the person making the disclosure has reasonable grounds to believe that the external report may involve a risk of retaliation or may not be effectively followed up because of the specific circumstances of the case.

Once the reporting process at the internal reporting office is completed, the internal reporting office can take various follow-up actions. In addition to internal investigations, the process can also be handed over to a competent authority for further investigation (section 18 No. 4 HinSchG).

Legislative Decree No. 24/2023 does not impose any particular obligation on the employer to send reports to other competent bodies.

As a principle, the disclosure of inaccurate information about violations is prohibited under the Whistleblower Protection Act (section 32 (2) HinSchG). A whistleblower may, however, not be sanctioned if the facts, after being verified, are merely not confirmed or do not constitute a violation in the final analysis. If the information disclosed was incorrect, the following legal consequences will apply:

On the one hand, the whistleblower must compensate for any damage resulting from intentional or grossly negligent reporting or disclosure of incorrect information (section 38 HinSchG). The whistleblower's liability for damages is based on the fact that a false report or disclosure has far-reaching consequences for the person affected or accused. The effects may no longer be completely reversible. According to the Whistleblower Protection Act, claims for damages resulting from merely negligent incorrect reporting should not arise. Besides, only whistleblowers acting in good faith are protected from further repercussions.

On the other hand, the whistleblower acts improperly if he intentionally discloses incorrect information in violation of section 32 (2) of the Whistleblower Protection Act (section 40 (1) HinSchG). This administrative offence may be punished with a fine of up to 20,000 EUR (section 40 (5) HinSchG).

To enjoy the protection of the law, the whistleblower must, at the time of the report, have reasonable grounds to believe that the information about the reported violations was true.

The whistleblower may incur criminal liability for the offences of defamation or slander. The whistleblower may also be held civilly liable, for the same offences, if there is wilful misconduct or gross negligence.

In such cases, the protections provided for under Legislative Decree No. 24/2023 will not be guaranteed and the whistleblower may be subject to a disciplinary sanction as well as to an administrative fine.

Retaliation against the whistleblower is prohibited under the Whistleblower Protection Act. This also applies to threats and attempts at retaliation (section 36 (1) HinSchG). In addition, it is prohibited to interfere or attempt to interfere with reports or communications between a whistleblower and the reporting office (section 7 (2) HinSchG).

If the whistleblower was nevertheless obstructed, the following legal consequences will apply: if a retaliation occurs, the person causing the violation must compensate the whistleblower for the resulting damage. However, this does not entitle the whistleblower to an employment relationship, a vocational training relationship, any other contractual relationship, or career advancement.

In addition, taking an illegal reprisal or interfering with the communications between the whistleblower and the reporting office constitutes an administrative offence, which can be punished with a fine of up to 50,000 EUR (section 40 (2) No. 3, (5) HinSchG).

An administrative penalty of between EUR 10,000 and EUR 50,000 may be imposed if the report has been obstructed or if an attempt has been made to obstruct it.

To obtain protection, the whistleblower generally has to contact the responsible internal or external reporting offices. Disclosure of information about violations directly to the public is subject to strict conditions. This is only permissible, for example, if there is a risk of irreversible damage or in cases where the external reporting agency has not taken the required measures (section 32 (1) HinSchG).

The whistleblower providing the information must further act in good faith (ie, must have reasonable cause to believe, at the time of the report or disclosure that the information disclosed is true, and the information relates to violations that fall within the material scope of the Whistleblower Protection Act (section 33 (1) No. 2 and 3 HinSchG).

The whistleblower receives protection if at the time of the report he or she had reasonable grounds to believe that the information about the reported violations was true and fell within the scope of Legislative Decree No. 24/2023.

The procedures to follow are the ones described regarding the use of internal and external reporting channels.

Reports directly to the public are subject to strict conditions that must be met to obtain protection. See question 18.

The most fundamental part of the protection is the prohibition of retaliation against the whistleblower. Therefore, the reporting or disclosing of information may not result in unjustified disadvantages such as disciplinary measures, dismissal or other discrimination against the person providing the information. In Addition, the Whistleblower Protection Act still contains a reversal of the burden of proof if the whistleblower suffers a disadvantage in connection with their professional activities. However, it is presumed that the disadvantage is a reprisal for the tip-off only if the whistleblower also asserts this themself. It should be noted, however, that the reversal of the burden of proof in favour of the whistleblower will only apply in labour court disputes and not in fining proceedings.

Furthermore, the Whistleblower Protection Act contains an exclusion of responsibility. Thus, a whistleblower cannot be made legally responsible for obtaining or accessing information that he or she has reported or disclosed, unless the obtaining or accessing of the information and the procurement or access as such constitutes an independent criminal offence (section 35 (1) HinSchG). In addition, a whistleblower does not violate any disclosure restrictions and may not be held legally responsible for the disclosure of information made in a report or disclosure if he or she had reasonable cause to believe that the disclosure of the information was necessary to detect a violation.

In addition to the whistleblower, protection measures also apply to:

• facilitators (ie, persons who assist a whistleblower in the reporting process, operating within the same working environment and whose assistance is kept confidential);
• persons in the same employment context as the whistleblower and who are bound to that person by a stable emotional or family relationship up to the fourth degree;
• colleagues of the whistleblower who work in the same work environment as the whistleblower and who have a regular and current relationship with that person;
• entities owned by the whistleblower, or for which the same persons work, as well as entities that work in the same work environment as the above-mentioned persons; and
• persons that report directly to the public, but only if certain strict conditions are met.

At first, the person providing the information may not be subject to legal liability for obtaining or accessing information that he or she has reported or disclosed. This does not apply if the procurement or access as such constitutes an independent criminal offence (section 35 (1) HinSchG).

In addition, whistleblowers are protected by a comprehensive prohibition of retaliation. Therefore, any adverse consequences caused by disclosure are prohibited. These include, for example, dismissal, disciplinary measures or salary reductions (section 36 (1) HinSchG). Measures that violate the prohibition are void under section 134 of the Civil Code. The prohibition of retaliation is rounded off by a reversal of the burden of proof. According to this, it is presumed that a disadvantage that occurs after a disclosure is retaliation. As a consequence, the person who has disadvantaged the whistleblower has to prove that it is factually justified and was not based on the report or the disclosure if the whistleblower also asserts the disadvantage himself (section 36 (2) HinSchG).

In addition, the whistleblower is entitled to damages in the event of a violation (section 37(1) HinSchG).

Extensive protection against retaliation is provided for whistleblowers.

In the event of disputes concerning retaliation against the whistleblower, there is a legal presumption in favour of the whistleblower.

Even in the case of a claim for damages made by the whistleblower, the damage is presumed to be a consequence of the whistleblowing.

It is expressly provided that the following may constitute retaliation:

• dismissal, suspension or equivalent measures;
• downgrading or non-promotion;
• change of duties, change of place of work, reduction of salary, change of working hours;
• suspension of training or any restriction on access to it;
• negative merit notes or references;
• the adoption of disciplinary measures or any other sanction, including a fine;
• coercion, intimidation, harassment or ostracism;
• discrimination or otherwise unfavourable treatment;
• failure to convert a fixed-term contract of employment into a contract of employment of indefinite duration, where the employee had a legitimate expectation of such a conversion;
• the non-renewal or early termination of a fixed-term employment contract;
• damage, including to a person's reputation, particularly on social media, or economic or financial loss, including loss of economic opportunities and loss of income;
• blacklisting based on a formal or informal sector or industry agreement, which may result in the person being unable to find employment in the sector or industry in the future;
• the early termination or cancellation of a contract for the supply of goods or services;
• the cancellation of a licence or permit; or
• a request to undergo psychiatric or medical examinations.

Other support measures (ie, information, assistance and advice) offered by third-sector bodies are then provided for the whistleblower.

There is also an exemption from liability where the whistleblower discloses or disseminates information on breaches covered by an obligation of secrecy or relating to the protection of copyright or the protection of personal data. This also applies to breaches that affect the reputation of the person involved or reported, where, at the time of the disclosure or dissemination, there were reasonable grounds to believe that the disclosure was necessary for the report and the report was made under the provisions of Legislative Decree No. 24/2023.

If a whistleblower abusively reports a violation, this may initially give rise to criminal liability. Possible criminal offences are pretending to have committed a criminal offence (section 145d of the Criminal Code), false suspicion (section 164 of the Criminal Code) or offences of honour (section 185 et seq of the Criminal Code).

The whistleblower providing the abusive information also must compensate for any damage resulting from intentional or grossly negligent reporting or disclosure of incorrect information (section 38 HinSchG). Furthermore, there may be competing claims for damages, for example under section 823 (2) of the Civil Code in conjunction with a protective law.

Moreover, the whistleblower commits an administrative offence if he or she intentionally discloses inaccurate information. This may be punished with a fine of up to 20,000 EUR (section 40 (1), (6) HinSchG).

In principle, the whistleblower is free to decide whether he or she reports a violation through the internal or the external reporting channel (section 7 (1) HinSchG). However, if a violation is disclosed to the public directly (ie, without first using internal or external reporting channels and without there being an exceptional circumstance for this), the whistleblower is generally not subject to the protection of sections 35 to 37 of the Whistleblower Protection Act. Only in narrow exceptions is the whistleblower still protected, for example, if there is a danger of irreversible damage or comparable circumstances may represent an immediate or obvious threat to the public interest.

See question 20 regarding defamation, slander and disciplinary sanctions.