Whistleblower
Persons who report breaches — protected under the HinSchG
TL;DR
Whistleblowers within the meaning of §§ 1 and 3 of the German Whistleblower Protection Act (HinSchG) are persons who, in the course of their professional activity or in advance of it, have obtained information about breaches and who report this internally or externally or disclose it publicly. Protected are: employees, applicants, former employees, self-employed persons, temporary agency workers, shareholders, members of corporate bodies and facilitators.
What is a whistleblower?
Protection applies where three conditions are met (§ 33 HinSchG):
- Reasonable grounds to believe that the information is true
- The information falls within the material scope of application (§ 2)
- The report is made internally, externally or, under certain conditions, publicly
Also protected: persons who support the whistleblower (facilitators, § 34 HinSchG).
Practical example
Protected persons:
- Permanent employees and temporary agency workers
- Applicants (including after rejection)
- Former employees (with no time limit)
- Self-employed subcontractors
- Shareholders
- Board members/managing directors
- Interns/working students
- Facilitators (e.g. family members, trade union representatives)
Legal position in Germany and Austria
Germany (HinSchG): the preceding sections describe the legal position in Germany under the Whistleblower Protection Act — the persons protected, the conditions for protection (§ 33 HinSchG) and facilitators (§ 34 HinSchG).
Austria (HSchG): in Austria, the Austrian Whistleblower Protection Act (HSchG) implements the EU Whistleblower Directive (EU) 2019/1937. The persons protected and the conditions for protection are parallel, but are governed by separate sections.
Austria: persons protected (§ 2 HSchG)
The personal scope of application (§ 2 HSchG) covers persons who, on the basis of a current or former professional connection with a legal entity in the private or public sector, have obtained information about legal infringements:
- Employees, public-sector staff and temporary agency workers (§ 2(1) no. 1)
- Applicants, interns, volunteers and other trainees (§ 2(1) no. 2)
- Self-employed persons (§ 2(1) no. 3)
- Members of an administrative, management or supervisory body (§ 2(1) no. 4)
- Persons who work or have worked under the supervision and direction of contractors, subcontractors or suppliers (§ 2(1) no. 5)
- Shareholders (§ 2(2))
- Facilitators and persons in the whistleblower's circle (§ 2(3))
Austria: conditions for protection (§ 6 HSchG)
Protection applies from the moment the report is made to an internal or external office, provided that at the time of the report the whistleblower had reasonable grounds, on the basis of the actual circumstances, to believe that the report is true and falls within the scope of the Act (§ 6(1) HSchG). Anonymous whistleblowers are entitled to protection under Chapter 4 (4. Hauptstück) where, as a result of their anonymous report, their identity becomes known without any action on their part and the report complies with § 6(1) (§ 6(3) HSchG).
In Austria, the competent state external office is the Federal Bureau of Anti-Corruption (BAK) (§ 15(1) HSchG); in Germany it is the federal external reporting office at the Federal Office of Justice (BfJ) (§ 19 HinSchG).