How religious communities in Germany must implement the Whistleblower Protection Act

The Whistleblower Protection Act and the church - a topic that has received little public attention so far. Probably because, apart from religious communities, which are just as obligated to implement it as companies and the public sector, most service providers around the HinSchG are aiming at easier clients than the Catholic and Protestant churches and the other religious groups in Germany.

The Whistleblower Protection Act (HinSchG), which came into force on 2 July 2023, generally obliges employers beyond 49 employees to set up a reporting office for whistleblowers who have discovered wrongdoing at an employer in the course of their professional activities and wish to report it with sufficient protection under labour law. The law also has implications for religious communities in the Federal Republic.

The aim of the law is to protect whistleblowers who point out abuses in their company. Religious communities are not exempt from these grievances and must therefore also take measures to ensure the protection of whistleblowers.

But what are malpractices that entail an appropriate level of protection? These include all violations of applicable national law which are punishable by a fine or are to be considered a criminal offence. Of course, this also includes cases of abuse of which a person has become aware in the course of his or her work. But also much more.

In the following sections we will take a closer look at the Whistleblower Protection Act and its implementation in the Church. We will discuss how the cooperation between church and state looks like in the implementation of the law, what requirements the law places on charitable institutions of the church and what role the church congregations play in the implementation of the Whistleblower Protection Act. We will also address the challenges in implementing the law and discuss what the law means for religious communities.

The Whistleblower Protection Act and its impact on religious communities

The Whistleblower Protection Act, as already highlighted in the first section, obliges companies and organisations to establish internal whistleblower channels and reporting offices to enable employees to uncover and report wrongdoing in their own operations. Religious communities in Germany are also affected by this regulation and must take measures to implement the law.

Surprisingly, however, the legislator regulates differently than for private employers and the public sector. Private companies, for example, have the option of setting up joint reporting centres, i.e. a kind of shared service centre, which receives all incoming cases for the various companies involved, provided they generally employ between 50 and 249 employees. The public sector, on the other hand, has the option of setting up joint reporting centres for municipalities and others, depending on the corporation and partly covered by state law yet to be created. The churches are not allowed to do this.

The EKD and the Commissariat of the German Bishops had already pointed out on 11 May 2022, in a joint statement on the then draft law, that churches or religious communities generally do not get the opportunity to share the responsibility that the law entails.

What does the Whistleblower Protection Act regulate vis-à-vis churches and religious communities?

If one takes section 14 (2) of the HinSchG as an opportunity, which explicitly allows only private employers with generally 50 to 249 employees to operate a joint reporting office, and puts this in conjunction with section 12, which does not provide for any exceptions for religious communities or churches, one must assume that every legal entity with 50 or more employees must operate its own reporting office under the HinSchG. In public law, legal entities are any church congregation which, within the framework of ecclesiastical self-administration, can be attributed to a higher authority. For example, the parishes in a Catholic diocese.

It can therefore be assumed that each legal entity must operate its own registration office if it has more than 50 employees. This number is very quickly the case when operating kindergartens, care facilities for the elderly or other caring institutions. Although the legislator allows for the possibility of outsourcing the operation of the registration office to a third party (external service provider) in accordance with section 14 (1) sentence 1, a combination of several registration offices is excluded by the absence of an explicit mention of religious communities in the group of those who may form joint registration offices. Section 14 (2) of the HinSchG only refers to private employers.

The EKD and the German bishops write:

"On section 12 HinSchG-E - obligation to set up internal reporting offices According to section 3 (9) HinSchG-E, the group of employers covered by the Act is broadly defined. Employers include legal persons under public and private law. The explanatory memorandum explicitly clarifies that the term also includes the Protestant and Catholic churches and their parishes, which are public corporations (see page 71 of the explanatory memorandum).

However, the draft then fails to take into account the church structures - especially with regard to the church institutions constituted under public law. Thus, the draft provides in section 12, paragraph 1, sentence 2 HinSchG-E that, insofar as the Federation or the Länder are employers as legal persons under public law, the supreme federal or Länder authorities shall designate organisational units in the form of individual or several authorities, administrative offices, establishments or courts which shall set up and operate internal reporting offices. This flexible regulation - as the authors of the draft state in the explanatory memorandum - makes it possible to find a customised solution depending on the administrative and organisational structures, which ensures low-threshold accessibility of an internal reporting office without creating inefficient and too small-scale structures.

The draft does not provide for such a possibility for the churches under public law. In this context, the right of churches to organise themselves is also constitutionally guaranteed under Article 140 of the Basic Law in conjunction with Article 137 paragraph 3 of the Constitution as a component of the church's right to self-determination (see BVerfG, Decision of the Second Senate of 22 October 2014 - 2 BvR 661/12 -, para. 90: The ecclesiastical right of self-determination "proves to be a necessary, legally independent guarantee which adds to the freedom of religious life and activity of the churches and religious communities the freedom to determine organisation, norm-setting and administration, which is indispensable for the fulfilment of their tasks (cf. BVerfGE 53,366 (401)"). The churches also need such a flexible solution as is made possible for the Federation and the Länder or, via Land law, for the municipalities and associations of municipalities. Thus, it is not only the diocese or regional church as a public corporation that is an employer with usually at least 50 employees. Church congregations constituted as public corporations also sometimes have at least 50 employees, for example if church congregations have merged into larger units and/or they are responsible for kindergartens, old people's homes or similar church institutions. In these cases, it must also be possible for the churches - like the Federation, the Länder and the congregations - to set up a low-threshold, accessible, internal reporting office without creating inefficient and too small-scale structures. Against this backdrop, the current draft also disadvantages church institutions under public law, since institutions under private law, if they are private employers under section 3(10) HinSchG-E, can join forces under section 14(2) HinSchG-E to operate an internal reporting office and thus conserve resources.

We therefore expressly request that the churches under public law also be given the opportunity to form organisational units.

§ 12 paragraph 1 HinSchG-E should therefore be supplemented by the following sentence:

"If public-law religious communities are employers, they shall designate organisational units in the form of individual or several posts".

As a consequence, this means first of all that each individual church congregation or other public-law structure must set up dedicated registration offices for each individual congregation that is to be regarded as an employer of employment.

Problems of the HinSchG for churches

If one assumes that churches organise themselves and have the right to do so under the Basic Law, it is difficult to imagine how the HinSchG can be implemented in the church's organisational practice. If every church congregation has to set up its own reporting office, each congregation also needs at least one person who acts as the person responsible for the reporting office and is also trained in the subject, as the Whistleblower Protection Act prescribes.

The challenge here is that reports are neatly classified and processed in order to be able to distinguish false from genuine cases. Whether and at all this expertise can be built up at the local level is still completely open.

At a higher level, for example at the level of a Catholic diocese, it is not possible to form a central investigation unit on this topic and to relieve the parishes of the challenging work of checking the validity and deriving follow-up measures. However, the municipalities are free to hand over the operation to an external service provider. In this case, however, contracts at the diocesan level with access for the individual legal entities would be conceivable, so that a diocese or diocese could centrally negotiate conditions.

In practice, however, each parish must ensure that the registration process takes place within its own legal entity.

Practice vs. law

In practice, however, it is likely that supra-governmental authorities will take a great deal of responsibility for the individual congregations and invoke the right of self-determination and the right of religious communities to organise themselves. However, as described above, this is accompanied by a certain legal uncertainty, which will probably only gradually be resolved in the course of the coming years through new legislative impulses or judicial law.

The importance of information disclosure in the church

Another challenge for the church in whistleblower protection is the relationship between freedom of information and personal data protection. The Whistleblower Protection Act obliges the church to uncover and report possible wrongdoing. At the same time, however, the church must ensure that the personal data of the persons concerned are protected and bring all this in line with its applicable internal and secular regulations on data protection. It is therefore necessary to strike a balance between freedom of information and data protection. The church is obliged to inform the data subjects about a possible notification and to inform them which data will be stored and for how long.

Cooperation with government agencies

Another important legal aspect of whistleblower protection in the church is cooperation with state agencies. The church is obliged to cooperate with the state agencies in the case of possible criminal offences and to support them in the investigation.

The reporting office also plays an important role in this. MROS must ensure that reports are forwarded to the right authorities and that the persons concerned are protected.

Overall, the implementation of the Whistleblower Protection Act within the church must be in line with the right to self-determination and the provisions of the Act. In doing so, it is important to strike a balance between freedom of information and data protection and to work closely with the state authorities.

Conclusion

Religious communities must take the Whistleblower Protection Act seriously and take steps to implement it. It is important that members of the communities know that they can report grievances without fear of reprisals and that the whistleblowing centre works independently. Only in this way can the goal of the law be achieved.

The implementation of the law therefore requires a rethinking within the church and a change in its previous structures and practices. Especially with regard to dealing with cases of abuse and discrimination as well as the establishment of hotlines and the training of staff and members.

However, it is important to emphasise that the Whistleblower Protection Act does not take away the Church's autonomy. Rather, it aims to increase transparency and accountability within the church and ensure that cases of abuse and discrimination are dealt with effectively and appropriately. However, the problems or tensions of the current legal situation do not make implementation particularly easy.

Ultimately, parishes need to ensure that the Whistleblower Protection Act is implemented in accordance with the specific faith practices and values of the church. It is important that congregations maintain their self-determination while ensuring that whistleblowers are protected from professional disadvantage and discrimination. Overall, the Whistleblower Protection Act helps to build trust and transparency in religious communities and to ensure the protection of whistleblowers.