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Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
There is no general law in Germany that provides for protection of whistleblowers in all sectors. In general, whistleblowers are at risk of having their employment contracts terminated or being sued for damages in case of unjustified whistleblowing.
However, in July 2016 new legislation regarding the Federal Financial Supervisory Authority was enacted in order to protect whistleblowers (Section 4d of the Federal Financial Supervisory Authority Code (FinDAG)). Anyone can now provide information regarding violations of regulations that are under the supervision of the Federal Financial Supervisory Authority. Such information can be provided anonymously; otherwise, the Federal Financial Supervisory Authority is legally obliged to protect the identity of the whistleblower and the individual under investigation. However, this does not apply where court rulings or other laws demand disclosure of the person’s identity. If employees of corporations that are under the supervision of the Federal Financial Supervisory Authority provide such information, no criminal or employment law consequences can be attached to this behaviour (Section 4d of FinDAG). Moreover, there is an exemption from any claims of damages, unless a false notification was produced with intention or gross negligence. These whistleblower rights are not subject to contractual agreements (ie, any contrary disposition between employee and employer is void).
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
In general, judges have the discretion to reduce criminal sentences, depending on the offender’s cooperation. Likewise, the prosecutor will usually reduce the sentencing request made in the public charges.
The existence of compliance programmes often serves as a factor for leniency at the sentencing level.
The explicit key witness protection, which results in a mitigation of sentence (laid down in Section 46b of the Criminal Code), applies only to individuals, not legal entities.
In practice, general cooperation with the authorities will help to minimise potential administrative penalties against the company (Section 30 of the Code on Regulatory Offences).
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