Guide to Whistleblowing

Contributing Editors

In this new age of accountability, organisations around the globe are having to navigate a patchwork of new laws designed to protect those who expose corporate misconduct. IEL’s Guide to Whistleblowing examines what constitutes a protective disclosure, the scope of regulations across 21 countries, and the steps businesses must take to ensure compliance with them.

Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Which body of rules govern the status of whistleblowers?

01. Which body of rules govern the status of whistleblowers?

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Germany

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The status of whistleblowers in Germany 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 EU Whistleblower-Directive should have been implemented into German law by 17 December 2021 at the latest. After initial draft legislation failed for political reasons, the Federal Ministry of Justice has recently presented a new draft bill for a Whistleblower Protection Act (HinSchG-E) on 13 April 2022. The legislative process is pending. The consultations on the draft bill in the German Bundestag and Bundesrat are expected to take place in the summer of 2022, so the bill can be expected to enter into force in the second half of the calendar year 2022.

The following responses are therefore based on the current draft bill legislation of the Federal Ministry of Justice. At this point, it also remains to be seen whether the government draft will make further amendments to the draft bill of the Federal Ministry of Justice.

If the draft bill should meet specific concerns under European law, this will be pointed out separately in the following.

Last updated on 29/07/2022

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Sweden

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In Sweden, whistleblowers are protected under:

  • the Whistleblowing Act (SFS 2021:890) addresses reports about violations of EU law or irregularities in the public interest;
  • the Discrimination Act (SFS 2008:567) addresses reports about discrimination, harassment and sexual harassment; and
  • the Freedom of the Press Act (SFS 1949:105) and the Fundamental Law on Freedom of Expression (SFS 1991:1469) address public sector employees’ freedom of communication to certain media outlets, etc.

Also, sector-specific legislation and regulation may impose a disclosure obligation on a whistleblower, such as the Patient Safety Act (SFS 2010:659).

The Whistleblowing Act entered into force on 17 December 2021 and enacts the Whistleblowing Directive (Directive (EU) 2019/1937[1]). The Whistleblowing Act, however, has a wider scope of applicability than the Whistleblowing Directive as it also protects whistleblowers who report on irregularities in the public interest.

 

[1] Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law.

Last updated on 02/08/2022

02. Which companies must implement a whistleblowing procedure?

02. Which companies must implement a whistleblowing procedure?

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Germany

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

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-E).   

Last updated on 29/07/2022

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Sweden

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The Whistleblowing Act requires businesses (within both the private and public sector) that at the beginning of the calendar year employ 50 or more employees to establish internal reporting channels and procedures. Internal reporting channels and procedures must be implemented by:

  • 17 July 2022, where the business employs 250 or more employees; and
  • 17 December 2023, where the business employs between 50 and 249 employees.

The Whistleblowing Act also requires competent authorities to establish external reporting channels by 17 July 2022.

Last updated on 02/08/2022

03. Is it possible to set up a whistleblowing procedure at a Group level, covering all subsidiaries?

03. Is it possible to set up a whistleblowing procedure at a Group level, covering all subsidiaries?

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Germany

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According to the explanatory memorandum of the draft bill 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-E). However, the European Commission has already announced in two statements that a group-wide whistleblower system does not meet the requirements of the EU Whistleblower Directive. It remains to be seen whether the draft law will still be amended at this point in the legislative process. If the German law ends up retaining the outsourcing of the obligation to a third party, which may also be a company belonging to the group, the question of the compatibility of the regulation with EU law will probably arise at a later stage.

The draft bill of 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.   

Last updated on 29/07/2022

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Sweden

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Yes; however, a whistleblowing procedure established according to the Whistleblowing Act can only be shared between group companies employing 50 to 249 employees at the beginning of the calendar year. Such group-wide whistleblowing procedures can only include the receipt of reports and investigations into the reported matters (save for contacts with the whistleblower).

It is, however, possible to deviate from the Whistleblowing Act as it relates to internal reporting channels and procedures to be applied concerning employees by way of a collective bargaining agreement (CBA) entered into by trade unions and employer organisations at a central level. As such, the labour market parties within the IT and tech sector have entered  a CBA that allows group-wide whistleblowing procedures to, inter alia, also cover group companies employing 250 or more employees. The CBA is only applicable to members of the relevant employer organisations party to the CBA.

Last updated on 02/08/2022

04. Is there a specific sanction if whistleblowing procedures are absent within the Company?

04. Is there a specific sanction if whistleblowing procedures are absent within the Company?

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Germany

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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-E.

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.

Last updated on 29/07/2022

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Sweden

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If whistleblowing procedures, including internal whistleblowing channels, are not established according to the Whistleblowing Act, the Swedish Work Environment Authority (SWEA, being the supervisory authority) may order the business to fulfil its legal obligations subject to a fine.

Any business preventing or hindering whistleblowing according to the Whistleblowing Act (eg, by omitting to implement whistleblowing procedures) may be held liable for damages payable to the relevant persons.

Last updated on 02/08/2022

05. Are the employee representative bodies involved in the implementation of this system? 

05. Are the employee representative bodies involved in the implementation of this system? 

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Germany

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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 draft bill of 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.   

Last updated on 29/07/2022

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Sweden

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There is no obligation to include employee representative bodies in the implementation of whistleblowing procedures.

Last updated on 02/08/2022

06. What are the publicity measures of the whistleblowing procedure within the company?

06. What are the publicity measures of the whistleblowing procedure within the company?

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Germany

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The draft bill of 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-E).

The current explanatory memorandum to the draft bill 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.

Last updated on 29/07/2022

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Sweden

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An internal whistleblowing channel and procedure established under the Whistleblowing Act must be made available for persons who are active within the business, including employees, volunteers, trainees, persons otherwise performing work under the supervision or direction of the business, the self-employed who perform services, members of the business’s administrative, management or supervisory bodies and shareholders operating within the business.

In addition, businesses must provide clear and easily accessible information on:

  • how to report via the internal reporting channel;
  • how to report via external reporting channels (both national and EU bodies); and
  • as applicable, the whistleblowers’ constitutional rights in respect of freedom of speech, freedom of communication and freedom to procure information.
Last updated on 02/08/2022

07. Should employers manage the reporting channel itself or can it be outsourced?

07. Should employers manage the reporting channel itself or can it be outsourced?

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Germany

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In principle, the draft bill of 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-E). 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.

Last updated on 29/07/2022

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Sweden

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Businesses may choose to manage reporting channels in-house or to outsource the management of reporting channels to third parties. Regardless, businesses should designate independent and impartial persons or departments (including third-party entities) to receive reports, maintain communication with whistleblowers, follow-up on reports and provide feedback to whistleblowers.

Last updated on 02/08/2022

09. What precautions should be taken when setting up a whistleblowing procedure?

09. What precautions should be taken when setting up a whistleblowing procedure?

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Germany

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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.

As per the present draft bill, there is no legal obligation to design the reporting channels in such a way that they enable the submission of anonymous reports. 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.

Last updated on 29/07/2022

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Sweden

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Businesses should ensure that personal data processed through a whistleblowing channel is handled according to the GDPR and the Whistleblowing Act, meaning the personal data controller should implement sufficient technical and organisational safety measures to protect personal data.

Further, employees and other impacted persons should, as a general rule, be informed upfront of any processing of personal data that may take place.

Last updated on 02/08/2022

10. What types of breaches/violations are subject to whistleblowing?

10. What types of breaches/violations are subject to whistleblowing?

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Germany

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The draft bill´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-E). 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-E). 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-E covers the majority of administrative offences in the context of employment.

Finally, the draft bill 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.

Last updated on 29/07/2022

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Sweden

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As a starting point, any breach, violation, irregularity or misconduct, as well as any personal grievance, may be subject to whistleblowing.

That said, the Whistleblowing Act only applies to whistleblowing in a work-related context concerning:

  • violations of EU law as per the Whistleblowing Directive; and
  • irregularities in the public interest.

Irregularities in the public interest include any act, omission, accident or other occurrence, whether intentional or negligent, ongoing or historical that may harm the public at large. Whistleblowing concerning other irregularities and misconduct, such as personal grievances or concerns related to the reporting person’s working conditions, are not protected under the Whistleblowing Act. Instead, such whistleblowing may be protected under, for example, the Discrimination Act.

Also, note that the Whistleblowing Act does not apply to whistleblowing concerning certain matters of national security.

Last updated on 02/08/2022

11. Are there special whistleblowing procedures applicable to specific economic sectors or professional areas?

11. Are there special whistleblowing procedures applicable to specific economic sectors or professional areas?

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Germany

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The draft bill of 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-E). Priority special provisions are, among others, regulated by the Money Laundering Act, the Banking Act, the Insurance Supervision Act and the Stock Exchange Act.    

Last updated on 29/07/2022

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Sweden

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Yes, there are sector-specific regulations that have precedence over the Whistleblowing Act, such as within the financial services sector.

Also, certain professionals can be held liable for any wilful breach of qualified secrecy applicable by law.

Last updated on 02/08/2022

13. Who can be a whistleblower?

13. Who can be a whistleblower?

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Germany

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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.

Last updated on 29/07/2022

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Sweden

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Please see question 12.

Last updated on 02/08/2022

14. Are there requirements to fulfil to be considered as a whistleblower?

14. Are there requirements to fulfil to be considered as a whistleblower?

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Germany

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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.

Last updated on 29/07/2022

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Sweden

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Please see question 12.

Last updated on 02/08/2022

15. Are anonymous alerts admissible?

15. Are anonymous alerts admissible?

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Germany

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The draft bill of 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-E). Also, external reporting offices do not have to process anonymous reports (section 27 (1) HinSchG-E). However, employers are entirely free to choose whether to provide systems that allow for the submission and processing of anonymous reports or not.

Last updated on 29/07/2022

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Sweden

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Yes; however, a business is under no obligation to accept anonymous reports and can demand that whistleblowers identify themselves in connection with reporting.

Last updated on 02/08/2022

16. Does the whistleblower have to be a direct witness of the violation that they are whistleblowing on?

16. Does the whistleblower have to be a direct witness of the violation that they are whistleblowing on?

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Germany

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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 para 3 HinSchG-E). However, only whistleblowers acting in good faith are protected from any discriminatory measures as a result of their report.

Last updated on 29/07/2022

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Sweden

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No; however, a whistleblower seeking protection under the Whistleblowing Act must have received or collected the information in a work-related context.

Also, a whistleblower must have reasonable grounds to believe that the information reported is true.

Last updated on 02/08/2022

17. What are the terms and conditions of the whistleblowing procedure?

17. What are the terms and conditions of the whistleblowing procedure?

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Germany

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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.

Last updated on 29/07/2022

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Sweden

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A whistleblowing procedure under the Whistleblowing Act must be designed to meet the following requirements:

  • the whistleblower must be able to report both in writing and verbally (including in a physical meeting); and
  • as a main rule, the whistleblower:
    • must receive an acknowledgement of receipt of the report within seven days of reporting;
    • should receive feedback regarding any action envisaged or taken as follow-up and on the grounds for such follow-up within three months of the acknowledgment of receipt of the report; and
    • should receive feedback regarding any action envisaged or taken as follow-up and on the grounds for such follow-up within three months of the acknowledgment of receipt of the report; and

It is possible to deviate from the above terms and conditions by way of a CBA; however, only as it relates to employees of the business (see question 3).

Last updated on 02/08/2022

18. Is there a hierarchy between the different reporting channels?

18. Is there a hierarchy between the different reporting channels?

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Germany

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There is no legally binding hierarchy between internal and external reporting channels. The whistleblower has, in principle, the right to choose whether to report the violations externally or internally. 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-E).

Although article 7(2) of the EU Whistleblower Directive provides that the member states will endeavour "to ensure that reporting through internal reporting channels is given preference over reporting through external reporting channels in cases where effective internal action can be taken against the infringement and the whistleblower does not fear reprisals", such prioritisation of the internal reporting channel cannot be inferred from the German draft bill.

Last updated on 29/07/2022

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Sweden

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The Whistleblowing Act distinguishes between:

  • internal reporting;
  • external reporting; and
  • public disclosures.

According to the Whistleblowing Act, a whistleblower is always free to choose to report either:

  • internally via or outside the internal reporting channels; or
  • via external reporting channels.

External reporting outside external reporting channels and public disclosures, however; are only protected where specific conditions are met. The Whistleblowing Act allows:

  • external reporting outside external reporting channels where the whistleblower:
    • has reported externally without such reporting having resulted in appropriate follow-up action or where the whistleblower has not received feedback within the statutory timelines; or
    • has reasonable grounds to believe that there is an imminent or manifest danger to life, health, safety or risk of substantial damage to the environment or otherwise has a legitimate reason; or
    • has reasonable grounds to believe that external reporting would entail a risk of retaliation or not result in the irregularity being effectively addressed.
  • public disclosures (including social media posts) where the whistleblower:
    • has reported externally without such reporting having resulted in appropriate follow-up action or where the whistleblower has not received feedback within the statutory timelines; or
    • has reasonable grounds to believe that there is an imminent or manifest danger to life, health, safety or risk of substantial damage to the environment or otherwise has a legitimate reason; or
    • has reasonable grounds to believe that external reporting would entail a risk of retaliation or not result in the irregularity being effectively addressed.

The Whistleblowing Act does not limit the protection offered to whistleblowers under other legislation, such as the Discrimination Act, the Freedom of the Press Act and the Fundamental Law on Freedom of Expression.

Last updated on 02/08/2022

19. Should the employer inform external authorities about the whistleblowing? If so, in what circumstances?

19. Should the employer inform external authorities about the whistleblowing? If so, in what circumstances?

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Germany

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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-E).

Last updated on 29/07/2022

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Sweden

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There is no such legal requirement.

Last updated on 02/08/2022

20. Can the whistleblower be sanctioned if the facts, once verified, are not confirmed or are not constitutive of an infringement?

20. Can the whistleblower be sanctioned if the facts, once verified, are not confirmed or are not constitutive of an infringement?

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Germany

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As a principle, the disclosure of inaccurate information about violations is prohibited under the draft bill of the Whistleblower Protection Act (section 32(2) HinSchG-E). 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-E). 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 draft bill of 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 the draft of section 32 (2) of the Whistleblower Protection Act (section 40 (1) HinSchG-E). This administrative offence may be punished with a fine of up to 20,000 EUR (section 40 (5) HinSchG-E).

Last updated on 29/07/2022

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Sweden

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If the whistleblower, at the time of reporting, had reasonable grounds to believe that the information reported was true (and of course assuming that all other conditions for protection are met) the whistleblower cannot, as a main rule, be sanctioned or otherwise held accountable.

However, this does not apply to a willful breach of qualified secrecy or to the collection of information where such collection constitutes a self-standing criminal offence.

Last updated on 02/08/2022

21. What are the sanctions if there is obstruction of the whistleblower?

21. What are the sanctions if there is obstruction of the whistleblower?

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Germany

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Retaliation against the whistleblower is prohibited under the draft bill of the Whistleblower Protection Act. This also applies to threats and attempts at retaliation (section 36 (1) HinSchG-E). 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-E).

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 100,000 EUR (section 40 (2) No. 3, (5) HinSchG-E).

Last updated on 29/07/2022

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Sweden

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A business that prevents or hinders whistleblowing or retaliates against whistleblowers can be liable to pay financial and general damages to the relevant person.

The SWEA may also order the business to implement whistleblowing procedures under the Whistleblowing Act, or be subject to a fine.

Last updated on 02/08/2022

22. What procedure must the whistleblower follow to receive protection?

22. What procedure must the whistleblower follow to receive protection?

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Germany

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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-E).

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-E)).

Last updated on 29/07/2022

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Sweden

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Regarding the procedure, please see questions 17 and 18.

A reporting person (see question 12) receives protection under the Whistleblowing Act when:

  • the reported information concerns either:
    • a violation of EU law; or
    • an irregularity in the public interest (cf. question 10) in a business in which the reporting person is or has been operative or will operate, or with which the reporting person is or has been in contact through the reporting person’s work; and
  • the reporting person has reasonable grounds to believe that the reported is true; and
  • the reporting is made internally or externally to an authority (including both national and EU bodies) or publicly disclosed under the Whistleblowing Act.

A whistleblower may also enjoy protection under other applicable legislation, such as the Discrimination Act.

Last updated on 02/08/2022

23. What is the scope of the protection? 

23. What is the scope of the protection? 

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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. The draft bill of the Whistleblower Protection Act contains a reversal of the burden of proof for proving such discrimination and is accompanied by a claim for damages on behalf of the affected party. 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 draft bill of 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-E). 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.

Last updated on 29/07/2022

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The Whistleblowing Act provides whistleblowers with protection against criminal, administrative and civil liability:

  • for any breach of confidentiality except for liability for the wilful breach of qualified secrecy; or
  • for the collection of information provided that the person had reasonable grounds to believe that the collecting was necessary to uncover the irregularities, save for when the collecting constitutes a self-standing criminal offence.

The Whistleblowing Act further protects whistleblowers against any retaliation and prohibits businesses from restricting or hindering reporting.

Last updated on 02/08/2022

24. What are the support measures attached to the status of whistleblower?

24. What are the support measures attached to the status of whistleblower?

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Germany

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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-E).

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-E). 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 (section 36 (2) HinSchG-E).

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

Last updated on 29/07/2022

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The competent authorities are responsible for providing easily accessible information on the advice and support offered by the authority and other parties.

Last updated on 02/08/2022

25. What are the risks for the whistleblower if there is abusive reporting or non-compliance with the procedure?

25. What are the risks for the whistleblower if there is abusive reporting or non-compliance with the procedure?

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Germany

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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-E). 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 (5) HinSchG-E).

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-E). 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.

Last updated on 29/07/2022

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In a worst-case scenario, the whistleblower lacks protection under the law and may therefore be held criminally, administratively and civilly liable and, as applicable, subject to disciplinary measures.

Last updated on 02/08/2022