Material scope
The material scope defines which breaches are covered by the protection of the German Whistleblower Protection Act – essentially criminal offences, fine-backed rules protecting life, limb and health, and large parts of EU law.
The material scope describes which types of breaches the protection of whistleblowers actually extends to. Not every report of misconduct falls under the German Whistleblower Protection Act (HinSchG); only reports concerning breaches that the legislator has conclusively listed in § 2 HinSchG are protected. Anyone reporting a breach that lies outside this catalogue cannot rely on the prohibition of reprisals and the other protective mechanisms of the Act – even if the report was made in good faith.Covered are, first, all criminally sanctioned breaches, that is, conduct that fulfils a criminal offence. Added to this are fine-backed breaches, but only insofar as the violated provision serves to protect life, limb or health, or to protect the rights of employees and their representative bodies. The scope further extends to an extensive catalogue of breaches against specific federal and state law as well as directly applicable EU legal acts – for instance in the areas of anti-money-laundering, product safety, environmental protection, food and feed safety, consumer protection, data protection, public procurement and financial services.
The German legislator thus deliberately exceeded the minimum standard set by the EU Whistleblower Directive – which was limited to breaches of certain Union law – and extended protection to the entirety of German criminal law and large parts of fine-backed law. In practice, every incoming report must therefore be carefully examined to determine whether the reported matter falls within the material scope. Mere breaches of internal policies, minor labour-law issues or purely political opinions are generally not covered, but may, depending on the design of the whistleblowing system, be voluntarily included within its remit.
Legal Basis
Section 2 HinSchG (German Whistleblower Protection Act); Art. 2 EU Whistleblower Directive (Directive (EU) 2019/1937)
Practical Example
The internal reporting office of a mid-sized company receives two reports in quick succession: one employee reports that safety valves in production are being tampered with to save inspection time; another complains that his supervisor repeatedly ignores him at lunch. The person tasked with case handling examines the material scope: tampering with the safety valves concerns the protection of life and health and is criminally sanctioned – it clearly falls under § 2 HinSchG, and the whistleblower enjoys full protection. The complaint about the supervisor's social conduct, by contrast, does not fulfil any offence in the catalogue; it is forwarded outside the HinSchG as a general HR matter, without the Act's formal deadlines and protective duties applying.