1. Exclusion of accountability

Whistleblowers cannot be held legally accountable for the acquisition of or access to information that they report to BaFin unless the acquisition or access as such constitute a criminal offence in their own right. You cannot be held accountable for not having obtained the information by lawful means. This is also the case if you contravene contractual provisions agreed between you and the organisation concerned.

Please note: nonetheless, you may not commit any crimes. You remain liable to punishment if, for example, you unlawfully enter a person’s rooms or property, spy out data or intercept data. In the event of doubt, we recommend that you seek legal advice.

Whistleblowers also do not violate any disclosure restrictions and may not be held legally accountable for the forwarding of information in the course of submitting a report if they had sufficient grounds to assume that the forwarding of information was necessary in order to uncover a violation. 

2. Prohibition of reprisals

Any attempt to take reprisals or to threaten reprisals is prohibited. Reprisals are all actions or omissions in connection with a person’s professional activities, which are a reaction to a report and as a result of which the whistleblower is or could be put at an unfair disadvantage. Reprisals must be understood broadly and include every discriminatory action in the professional context that is attributable to a report. Examples of a reprisal might be a job dismissal, a written warning, rejections to applications to participate in further training measures or reputational damage, bullying or other forms of discrimination.

If you claim before a court of law that you have suffered a disadvantage as a result of the report you submitted, it is not up to you to prove that the reprisal taken against you was a consequence of your report. It is the employer (or the person that took the discriminatory measure) that must prove that the reprisal was not a consequence of your report.

Other examples of reprisals are:

• suspension from office
• job dismissal or comparable measures
• demotion or refusal to grant a promotion
• relocation of tasks
• change in place of work
• cuts in salaries
• change in working hours
• rejections to applications to participate in further training measures
• negative performance assessment or bad employment reference
• disciplinary measures
• reprimands or other sanctions including financial sanctions
• coercion, intimidation, bullying or exclusion
• discrimination, discriminatory or unequal treatment
• failure to convert a fixed-term employment contract into a permanent contract in cases in which the employee may rightly expect to be offered a permanent contract
• failure to extend a fixed-term employment contract or premature termination thereof
• Damages (including reputational damage), especially in social media, or financial losses (including loss of orders or earnings losses)
• whistleblower added to a “black list” based on an informal or formal agreement of a specific sector or line of business with the consequence that the whistleblower is unable to find employment in that sector or line of business; premature termination or cancellation of a contract on goods or services; withdrawal of a licence or authorisation; psychiatric or medical referrals. An action wrongly brought to a court of law can also be an example of a reprisal.

Please note the following points regarding reprisal protection: 

• you are also protected by the Whistleblower Protection Act if your identity only becomes known after an anonymous report or disclosure was made.
• persons who report violations of Union law that lie within the scope of the Whistleblower Protection Act to competent bodies, institutions or other offices of the European Union are also entitled to protection against reprisals.
• the reprisals prohibition does not apply to reports containing information that is already available in full in the public arena and that does not offer any new insights.
• the reprisals prohibition does not apply if you wrongly or maliciously report incorrect information. In cases of intent or gross negligence, you could also find yourself liable to pay damages if the information you reported or disclosed is incorrect (section 38 of the Whistleblower Protection Act)..
• before filing a report, you must ensure that you have concrete indications that a violation has taken place. There is no protection in cases of mere speculation. We therefore recommend that you endeavour, as far as possible, to explain why you suspect that a violation has taken place. It is also helpful to notify us of any proof you have to support your claims (e.g. witnesses, documents.
• a point you should note is that, if there has been a violation of the reprisals prohibition, BaFin’s Contact Point for Whistleblowers is not in a position to support you in the assertion of your claims. In such cases we recommend that you contact a representative of the legal professions or other office that may offer you legal advice in this matter.
• we are legally obliged to delete a documented report three years after completion of the procedure. From this time onwards, the documents pertaining to the case will no longer be available to serve as evidence. If you believe that you are the target of professional reprisals, we recommend that you take it upon yourself to store suitable documents in a safe place in order to verify your claims if the need arises.
• anyone unlawfully taking reprisals of this kind is committing an administrative offence. The attempt to do so is punishable. Contraventions can be punished by imposition of a fine of up to 100,000 euros (section 40 (2) no. 3, (6) of the Whistleblower Protection Act)..

3. Compensation as a result of reprisals taken

You have a claim to compensation from the party responsible for violating the reprisals prohibition. The responsible party is often the employer, but can also be other persons.

4. Liability to pay damages for incorrect information reported on the basis of intent or gross negligence

If you report incorrect information on the basis of intent or gross negligence, you are liable to pay damages arising from such a report. False suspicion cast as a result of a report can have far-reaching consequences for the parties concerned and it may not be possible to make good the damage done. 

5. Invalidity of agreements that restrict the rights of whistleblowers under the Whistleblower Protection Act

The protection provisions under the Whistleblower Protection Act are mandatory. For example, employment contracts, service or work agreements in collective agreements are not allowed to contain deviations from these provisions if this would be to the disadvantage of the protected persons. This also covers collectively agreed and company provisions. Thus, any agreements that restrict or exclude these statutory rights are invalid. This applies in particular to the free access to external reporting offices or the admissibility of a disclosure under the conditions of this Act. Any limitation or exclusion of the means to assert rights through a court of law by way of an arbitration agreement are thus also excluded.