German law permits its citizens to report frauds against the U.S. Government under the False Claims Act, or violations of the provisions of the Securities & Exchange Act, Foreign Corrupt Practice Act, or Commodities Exchange Act.

Current Status of Germany’s Whistleblower Laws

What disclosures are currently protected?

Germany has no overarching law protecting whistleblowers and although the current labor law allows private whistleblowers to report dangers to health or safety (including crimes) in the workplace theoretically without retaliation, whistleblowers must report their suspicions internally before going to authorities. Furthermore, a whistleblower may still be faced with employment retribution if his or her suspicion turns out to be unfounded because the burden of proof in retaliation cases rests with the whistleblower.

Additionally, there are no reward provisions for successful whistleblowers in German law and there is no comprehensive German whistleblower program. Therefore, whistleblowers may be better off reporting to U.S. regulators where possible, at least until the transposition of the Whistleblower Directive is complete.

Laws that may contain helpful whistleblower provisions include the following, although they will typically be limited in terms of what subject matter falls within their scope:

  • The Federal Civil Service Act
  • The Law on the Federal Financial Supervisory Authority
  • The German Data Protection Act

Can German whistleblowers receive rewards?

There is no law in Germany providing whistleblowers rewards, however, they may receive rewards through U.S. laws

Recent updates and future legislative developments

Germany is currently in the process of transposing the EU Whistleblowing Directive, however, whistleblower advocates have widely criticized the broad proposals put forward from the German government thus far.

Can/should German whistleblowers report to U.S. officials?

No law in Germany currently prohibits Germans from reporting frauds against the U.S. government under the False Claims Act, or violations of provisions of other statutes including the Securities & Exchange Act, Foreign Corrupt Practice Act, or Commodities Exchange Act, although whistleblowers should make sure to comply with data protection and privacy rules in Germany and proceed with caution. Therefore, German whistleblowers can, and should, report to U.S. officials if they are able. Indeed, last year along German citizens provided information to US authorities in at least 44 whistleblower cases.

Introduction for German Whistleblowers Using U.S. Laws

An overview of the whistleblower protections in the United States

The United States has over 50 separate whistleblower laws, and they each define a protected disclosure separately.

The most comprehensive and widely used U.S. laws offering whistleblowers significant protections are the False Claims Act, the Dodd Frank Act, the Commodities Exchange Act, and the Internal Revenue Code.
These laws all provide various degrees of anonymity, confidentiality, and rewards and cover a myriad of common legal violations.

Protection and anonymity under commonly used whistleblower laws

The False Claims Act permits a whistleblower to file his or her original complaint without revealing his/her identity to the public or a would-be defendant. However, after the government concludes its investigation as to the subject of the complaint, in most cases, the complaint is made public.

The SEC Whistleblower Program (created by the Dodd Frank Act), which includes fraud under the Securities Act of 1933 and the Securities and Exchange Act of 1934, and bribery under the Foreign Corrupt Practices Act, allows for anonymous and confidential filings with the SEC. Similarly, the Commodity Futures Trading Commission’s Whistleblower Program allows for confidential and anonymous filings. Both programs have significant safeguards in place to protect confidential whistleblowers from detection and retaliation.

The IRS whistleblower program, which covers tax frauds, underpayments, and money laundering does provide that whistleblowers’ confidentiality will be protected to the maximum extent permitted by law but does not permit anonymous filings.

Federal employees also can follow rules for confidentiality under the Inspector General Act and other laws.

Examples of what to do or not do to ensure you are protected as a whistleblower under U.S. law

Every whistleblower program discussed in the prior section has its own explicit rules that whistleblowers must follow to maintain anonymity and confidentiality and to preserve their claims. However, there are also a set of “unwritten rules” in Kohn, Kohn & Colapinto’s experience for whistleblowers who want to make sure that their identity and status as a whistleblower are fully protected.

For example, we recommend only reporting to U.S. regulators and against reporting internally as made clear by the Danske Bank Whistleblower Case. In that case, Howard Wilkinson did everything right in reporting up the internal chain of command. However, despite “internal controls” his identity was ultimately leaked by Danske in retaliation.

We also recommend finding an attorney familiar with whistleblower law as soon as possible, before making any disclosures, and only reporting to agencies with strict whistleblower protection guidelines based on for example our experience working on Bradley Birkenfeld’s case. Before retaining Kohn, Kohn & Colapinto, LLP, Mr. Birkenfeld voluntarily provided information about tax fraud directly to Justice Department prosecutors who did not consider him a “whistleblower.” As a result, these prosecutors filed charges against Mr. Birkenfeld, and he was sentenced to a term in jail for participating in the fraud he was blowing the whistle on. After this misstep, he retained Kohn, Kohn & Colapinto, LLP through which he correctly filed his IRS whistleblower claim. His disclosure and cooperation with U.S. authorities began the dismantling of the historical secrecy of Swiss banks and, as of 2018, more than 56,000 delinquent taxpayers had come forward, and the IRS had collected $11.1 billion in back taxes, while numerous banks were successfully prosecuted or entered into settlement agreements with the U.S. government. The total amount of revenue generated from the U.S. government’s use of whistleblowers in detecting and prosecuting illegal Swiss banking is estimated at $16.19 billion.

The majority of Kohn, Kohn & Colapinto, LLP’s current and former clients remain anonymous and confidential, including non-U.S. whistleblowers from numerous European countries, such as France, Greece, Germany, Russia, Serbia, Spain, Switzerland, and the United Kingdom, some which do not offer confidential and anonymous reporting and are known for allowing retaliation against whistleblowers. However, our expertise in the written and unwritten laws have allowed us to continue to protect these clients.