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Expert questions on the Whistleblower Protection Act<\/span><\/p>\n 1. Question: Do applicants fall under the definition of employment according to the HinSchG?<\/span><\/strong><\/p>\n It’s a really exciting topic. The wording of the Whistleblower Protection Act (HinSchG) does indeed suggest that applicants generally do not fall under the definition of employee and should therefore not be able to turn to an internal reporting office. Nor does this directly contradict the personal scope of application pursuant to \u00a7 1 (1) HinSchG, which undisputedly includes applicants, because applicants can still turn to external reporting offices. In addition, employers are free to design their internal reporting offices in such a way that they are also open to applicants, \u00a7 16 para. 1 HinSchG. In these cases, the law on the protection of applicants as whistleblowers also applies.<\/p>\n 2. Question: To what extent does the Whistleblower Protection Directive (Directive (EU) 2019\/1937) include applicants as whistleblowers?<\/span><\/strong><\/p>\n The wording of the Whistleblower Protection Directive (Directive (EU) 2019\/1937), which was implemented by the HinSchG, also argues against the general inclusion of applicants as whistleblowers at internal reporting offices. In accordance with Article 8(2) of the directive, workers must be allowed to report information on infringements. Pursuant to Article 4(1)(a) of the Directive, the Directive applies to workers within the meaning of Article 45(1) TFEU. Article 4(3) of that directive extends the scope ratione personae to reporting persons whose employment relationship has not yet commenced and who have obtained information about breaches during the recruitment procedure or other pre-contractual negotiations. It may be inferred from this that, although the Directive does not, in principle, cover candidates within the definition of worker, it is nevertheless intended to protect them.<\/p>\n Within the framework of the internal reporting office, however, not only employees should be able to report, but also other groups defined in Art. 4, such as self-employed persons pursuant to para. 1 lit. b or whistleblowers pursuant to para. 2, who report or disclose information about violations of which they have become aware in the context of an employment relationship that has since ended. On the other hand, paragraph 3, i.e. the group of applicants, is not mentioned.<\/p>\n However, it is doubtful whether this result is compatible with the protective purpose of the provision, bearing in mind that, for example, recital 39 of the Directive explicitly mentions the protection of applicants against retaliation under labour law. A protection against reprisals, but one that would be particularly relevant in the case in which the applicant turned to an internal reporting office of the future employer.<\/p>\n The argument from the essay that an interpretation of the concept of employee in conformity with European law could certainly also include applicants, as Art. 45 Ab. 3 lit a TFEU can certainly be heard.<\/p>\n 3. Question: What does this mean for implementation in the company?<\/span><\/strong><\/p>\n