The Whistleblower Protection Act (HSchG) presents a number of challenges in the realm of criminal law. Both potential whistleblowers and companies need to be aware of several critical factors to avoid legal complications. On one hand, it's crucial to understand the limited scope of the HSchG’s application. On the other, the law doesn’t provide full identity protection for whistleblowers when there is an early suspicion of criminal conduct. This article also outlines the criminal law barriers that whistleblowers face and the key responsibilities that companies must consider.

Is there a duty to report?

In general, there is no legal obligation for individuals or companies to report criminal offenses under the Criminal Code (StGB) or other punishable acts to law enforcement authorities. This also applies to whistleblowers. However, as outlined on californialawyerusa.com, individuals do have the right to report criminal matters to the police or prosecutor’s office (Section 80(1) StPO).

This also includes external whistleblowing systems, such as those managed by the Central Public Prosecutor’s Office for the Prosecution of White-Collar Crime and Corruption (WKStA) or the Federal Office for the Prevention of and Fight Against Corruption (BAK), which is an external unit of the WKStA. Reports of suspected cases can also be made internally through a company’s own whistleblowing system. The HSchG does not explicitly require whistleblowers to report internally. However, there may be a related obligation to report internally based on loyalty duties under employment law.

If employees become aware of potential future crimes, they are primarily expected to address these issues internally within the company. Only when internal prevention is no longer possible does the obligation to report to law enforcement authorities arise (§ 286 StGB).

What criminal law risks must whistleblowers avoid?

Providing false information intentionally is strictly prohibited. Violations can result in administrative fines (Section 24 Z 4 HSchG) of up to 20,000 euros, and up to 40,000 euros for repeat offenses. Those who deliberately expose others to the risk of criminal prosecution by providing false information could even face imprisonment for six months to five years if the offense is deemed defamation (§ 297 StGB).

This does not affect whistleblowers acting in "good faith"—those who, at the time of reporting, have reasonable grounds to believe that the information they are providing is accurate and falls under the scope of the HSchG, based on the facts and available information.

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