The Whistleblower Protection Act requires certain companies to set up a reporting office. It is intended to give people who become aware of legal violations in the course of their professional activities the opportunity to report these violations without fear of reprisals.
According to the Whistleblower Protection Act, certain companies must set up a complaints procedure through which affected persons can report violations of human rights and environmental standards.
The Whistleblower Protection Act applies to companies with at least 50 employees; the Whistleblower Protection Act applies to companies with at least 1,000 employees. Therefore, all companies to which the Whistleblower Protection Act applies must also fulfill the obligations under the Whistleblower Protection Act.
Many companies ask themselves whether they should combine the two procedures in one channel or whether they should maintain separate channels.
There is no compelling legal reason for one solution or the other. There are arguments in favor of both options.
The BAFA recently commented on this in an update to its FAQ and clarified that, in its view, both channels can be linked:
"Companies can comply with the requirements of the LkSG with a uniform complaints channel that can be used for reports under the LkSG as well as for reports under the HinSchG (...)" (12.2. of the FAQ).
However, the CSDDD's reasoning takes a different approach. Recital 60 states:
"Due to the larger number of persons or organizations entitled to lodge a complaint and the broader range of subject matters, the complaints procedure under this Directive should be legally understood as a separate mechanism from the internal reporting procedure that companies have established under Directive (EU) 2019/137 of the European Parliament and of the Council"
The aforementioned Directive 2019/137 is the "Whistleblower Directive", to implement which the Whistleblower Protection Act was enacted.
According to this, a separation of the channels is preferable. The recitals are not legally binding. However, for companies that want to prepare for the implementation of the CSDDD, this may be an argument for separating the procedures.
Contact details:
Rechtsanwalt Holger Hembach
Alte Wipperfürther Straße 135 b
51467 Bergisch Gladbach
Tel.: +49 (2202) 8188 760
Mail: info@hembach.legal
