Austria is behind schedule in implementing the EU Whistleblowing Directive. Are whistleblowers to remain unprotected in this country? And if not, how and when will the EU Whistleblowing Directive actually be implemented in Austria?
The EU Whistleblowing Directive should have been transposed into national law by December 17, 2021, but a review draft has not yet been published or submitted to Parliament. However, this is planned for 2022 due to the complexity of the matter. The aim of the directive is to ensure a uniform minimum standard of protection for whistleblowers.
In detail:
According to the Whistleblowing Directive, the establishment of internal reporting channels should enable whistleblowers to disclose wrongdoing, whereby not only private companies but also public bodies are obliged to do so.
Increasing transparency is the aim of the directive, which provides for comprehensive requirements, including with regard to the confidentiality of the whistleblower’s identity, as well as the protection of the whistleblower from any reprisals (dismissals, harassment) by the employer that could result from the disclosure of internal grievances.
The EU Whistleblower Directive is to be implemented in a legally secure and practicable manner. Whistleblowers are to be protected from legal disadvantages not only in the event of breaches of EU law, but also in the event of significant breaches of regulations or other significant misconduct, the disclosure of which is in the particular public interest (Eversloh, coalition agreement of the new governing parties, RdW 2022/56 (72)).
The directive provides for a multi-stage reporting system. Firstly, breaches can be reported via an internal channel. The directive stipulates that the reporting channels must be designed, set up and operated in such a secure manner that the confidentiality of the identity of the whistleblower and third parties mentioned in the report is maintained and unauthorized employees are denied access to them. The report must be possible in written or verbal form. There are no technical requirements. If no measures are taken, external reporting channels (e.g. authorities) should provide a remedy. If no action has been taken following an internal and external report or if there is a risk to the public interest, the final escalation stage is to go public. Companies should not let it come down to the latter two stages: If a report is made to the authorities, companies no longer have any chance of obtaining immunity from prosecution, for example by submitting a leniency application to the Federal Competition Authority or by making a voluntary disclosure to the tax office(Mandatory whistleblower reporting systems – Haslinger / Nagele Rechtsanwälte (haslinger-nagele.com)).
Private companies with 50 or more employees, legal entities in the public sector including regional administrations and municipalities with 10,000 or more inhabitants are affected by the implementation. Smaller companies with between 50 and 249 employees are granted a transitional period until December 17, 2023(The Austrian Whistleblowing Act | integrityline.com).
How is the transposition into national law:
The Federal Ministry of Labor first sent a working draft for the implementation of the EU Whistleblower Directive to all other ministries at the beginning of 2021 as a basis for the legislative preparations. Since then, all ministries have been involved in the legislative work both verbally and in writing. The Federal Ministry of Labor has evaluated all discussions held to date with the other ministries, the federal states and the social partners, as well as the available written statements, and has defined open points on which a political consensus still needs to be reached.
The review was due to start in December 2021. The reasons for the delay lie in the complexity of the cross-cutting issue and the resulting need to obtain a number of expert opinions that fall within the remit of several federal ministries, as well as in the considerations regarding institutional arrangements associated with the implementation of the Directive, such as in particular the external whistleblowing hotline. The submission for parliamentary consideration will follow the review, evaluation and consideration of the review results. The submission to Parliament will therefore presumably take place in 2022 ( see https://www.parlament.gv.at/PAKT/VHG/XXVII/AB/AB_08282/index.shtml).