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Written by

Søren Skjerbek
Partner LLM

Whistleblower schemes – bill adopted

The act implementing the whistleblower Directive into Danish law has been finally passed, and the Parliament has decided that Danish groups of companies can establish a joint whistleblower scheme (at least for the time being).

Back in April 2018, the European Commission presented a proposal for a new directive to increase protection for whistleblowers who report violations of EU law. The Directive was adopted following a series of adaptations in October 2019 and must be implemented in the Member States by December 2021.

A draft bill was sent for consultation by the Ministry of Justice on 24 February 2021 (see here, in Danish). Subsequently, on 14 April 2021, a bill was submitted to the Parliament (see here, in Danish). In the most important respects, the bill was identical to the draft, and the bill adopted is also largely identical to the draft.

During the consideration of the bill in the Parliament, however, a large number of Danish groups raised questions concerning the possibility of establishing a joint whistleblower scheme for groups, as according to the wording of the bill in conjunction with the legislative material, groups were required to establish a whistleblower scheme for each legal entity with over 249 employees.

New in the adopted act: joint whistleblower schemes for groups

The Parliament has decided that it must be possible for Danish groups to establish a joint whistleblower scheme for the entire group in the first instance, rather than a whistleblower scheme being established for each individual legal entity with more than 249 employees.
However, it also appears from the adopted act that the Minister of Justice may lay down rules excluding the possibility of establishing a common whistleblower scheme anyway. This will depend on whether the Minister of Justice and the Legal Affairs Committee assess up to the date when the act enters into force whether it will be in accordance with the Directive for groups to have a common system and, in connection with this, they will also look at what the interpretation may be in other countries implementing the Directive. A report from the Legal Affairs Committee states that if there is a real doubt whether it would be contrary to the Directive to have group-wide whistleblower schemes, Danish legislation will not prevent companies from implementing group-wide schemes. Conversely, if there is no doubt that this would be contrary to the Directive, then the Minister of Justice will lay down rules that companies cannot have group-wide schemes.

The act will enter into force on 17 December 2021.

The content of the above is not, and should not be a substitute for legal advice.