Understanding Austria’s new Whistleblower Protection Act

The new Whistleblower Protection Act entered into force in Austria on 25 February 2023. In this episode of our Arbeitsrecht Podcast, Anna Schwamberger and Magdalena Ziembicka highlight key elements of the new law and clarify common misconceptions.

What is the law about?

Austrian companies with 50 or more employees are obliged to set up internal reporting channels to bring to the attention of the company violations of certain areas of law.

What is the deadline to set up an internal reporting channel?

• 6 Months following the entry into force of the law (i.e., 25 August 2023) for companies with 250 employees and more;
• 17 December 2023 for companies with 50 to 249 employees.

How long will it take to set up an internal reporting channel?

Companies will need to make financial and human resources available and ensure that internal reporting channels are set up in line with the legal requirements. Therefore, companies should already start this process now, despite the transition period.

What can be reported via these reporting channels?

Austrian law provides for a broad definition of areas, for which breaches or misconduct can be reported. For this reason, the whistleblower, in our view, does not have to have special legal knowledge to decide whether a report can be made. The areas for reporting include inter alia product and traffic safety, environmental protection, financial services, public health, consumer protection, privacy and data protection, as well as certain criminal law provisions on corruption and competition under EU law.

What are the sanctions for failing to set up an internal reporting channel?

The Whistleblower Protection Act does not provide any sanctions for not setting up an internal reporting channel. However, not having one will put companies at a disadvantage, as employees may turn directly to external reporting channels run by public authorities. Therefore, companies with such systems will not be able to internally investigate allegations without involving the authorities.

Is anonymous reporting permitted?

Anonymous reporting is permitted, and anonymous whistleblowers enjoy the same protection as non-anonymous whistleblowers. However, companies are not obliged to enable anonymous reporting in their internal reporting channels.

What legal protection does a whistleblower have against retaliatory measures by the employer?

In cases where an employee was dismissed in connection with the filing of a justified whistleblowing report, the dismissal is void and the employee may file a lawsuit with a competent labour and social court. In addition, the employee can claim pecuniary loss and compensation for personal impairment. The employer may further be subject to administrative fines.

What are the sanctions for false reporting?

False reports, meaning reports where the whistleblower knows that the allegations are incorrect, should be rejected by the company. Furthermore, the whistleblower in such cases may be subject to claims for damages and administrative fines of up to EUR 20,000 (EUR 40,000 in the event of recurrence).

Who can use a company’s internal reporting channels?

Companies must provide their employees and temporary workers with access to internal reporting channels. Additionally, other groups are also protected under the Whistleblower Protection Act such as job applicants and suppliers. Companies are however free to decide whether to grant these groups access to the internal reporting channels.