Denmark - Whistleblowing Laws in Europe: An international guide

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1) Local Laws

a) Has the country implemented any laws / regulations on whistleblowing (Local Law)?

Yes, on June 24, 2021, the Act on the Protection of Whistleblowers (the Whistleblowing Act) was adopted as the Danish implementation of EU directive 2019/1937 (the Whistleblowing Directive).

The Whistleblowing Act enters into force on December 17, 2021 and has two main themes:

  • providing legal protection to individuals acting as whistleblowers; and
  • obligating public and private organizations to establish whistleblowing schemes.

In addition to the above, Denmark has laws regulating whistleblowing procedures in the financial sector. These laws include the Danish Anti-Money Laundering Act, the Danish Financial Business Act, the Danish Property Credit Companies Act, the Danish Consumer Credit Agreements Act, the Danish Insurance Mediation Act, the Danish UCITS Act, the Danish Capital Market Act, the Danish AIFM Act and the Danish Payments Act.

2) Scope of application

a) What types of wrongdoings are covered by the Local Law? Does it cover breaches of EU law?

Whereas the laws specific for the financial sector only apply if whistleblowers report illegal conduct relevant under the specific legislation, the Whistleblowing Act covers (when it enters into force):

  • breaches falling within the scope the Whistleblowing Directive, ie breaches of EU legislation concerning the areas of:
    • public procurement
    • financial services, products and markets, and prevention of money laundering and terrorist financing
    • product safety and compliance
    • transport safety
    • protection of the environment
    • radiation protection and nuclear safety
    • food and feed safety, animal health and welfare
    • public health
    • consumer protection
    • protection of privacy and personal data, and security of network and information systems
  • other “serious breaches” of Danish law, such as breach of statutory confidentiality, misuse of financial means, theft, fraud, embezzlement, bribery as well as serious breaches of occupational safety; and
  • other “serious matters” such as discrimination, violence, harassment if it has a serious or recurring nature (including sexual harassment).

Less serious matters or ordinary employment issues fall outside the scope of the Whistleblowing Act. This may include complaints about salary, minor harassments, minor cases of discrimination, incompetence, collegial difficulties, general inappropriate behavior or conduct, as well as breach of internal policies on eg smoking, alcohol consumption, unless these matters are particularly serious or recurring in nature. Generally, such matters must be reported through ordinary channels such as HR or immediate supervisor.

b) Personal scope

i) Does the Local Law apply to reporting persons working in both the private and public sectors?

Yes.

ii) Does the Local Law apply only to breaches that the reporting person became aware of in a work-related context?

The Whistleblowing Act (when it enters into force): Yes, the reporting person must have become aware of the breach in a work-related context.

Sector-specific laws (financial sector): no such requirement exists.

iii) Does the Local Law also protect: facilitators; people connected to the whistleblower and who could suffer retaliation in a work-related context; and legal entities the whistleblower owns, works for, or is otherwise connected with?

Yes, these are protected by the Whistleblowing Act (when it enters into force).

c) Does the Local Law require specific conditions to protect reporting persons?

The Whistleblowing Act (when it enters into force) requires the reporting person to reasonably believe that the reported breach is within the scope of the Act.

3) Reporting channels

a) Does the Local Law allow anonymous reports? How are companies/agencies meant to handle them?

The Whistleblowing Act (when it enters into force) allows anonymous reporting, but this is not mandatory.

For sector-specific laws (financial sector), the possibility of reporting anonymously is mandatory.

b) Is there a duty of confidentiality and any derogation from this duty?

Yes, there is a duty of confidentiality. Under the Whistleblowing Act (when it enters into force), the identity of the reporting person and other information may be shared with the reporting person’s consent. In addition, such information may be shared with public authorities if necessary to prevent a breach of law or where necessary to safeguard the rights of defense of the person concerned.

c) Public disclosures: does the Local Law provide for this possibility?

Yes, under the Whistleblowing Act (when it enters into force), public disclosure is possible where:

  • the whistleblower’s reporting though internal and external channels leads to appropriate measures being taken within the deadlines laid down in the Whistleblowing Act;
  • the whistleblower reasonably believes the breach constitutes an imminent or manifest danger to the public interest; and
  • the whistleblower reasonably believes that, in case of external reporting, there is a risk of retaliation or there is a low prospect of the breach being effectively addressed.

4) Reporting channels: internal

a) Is there an obligation for private and/or public legal entities to establish channels and procedures for internal reporting and follow-ups?

Yes, the obligation to establish whistleblowing schemes under the Whistleblowing Act, when it enters into force on December 17, 2021, apply to all public and private organizations (legal entities) with 50 or more employees. However, for private organizations with 50-249 employees, the obligation to establishing a whistleblowing scheme applies from December 17, 2023.

For entities subject to the sector-specific legislation (financial sector, see question 1a above), the obligation to establish whistleblowing schemes already applies. Entities subject to these sector- specific laws with more than five employees must have a scheme in place whereby its employees can anonymously report – via a special, separate and independent channel – violations or potential violations of the provisions on the prevention of money laundering and terrorist financing.

b) Do internal reporting channels need to allow reporting in writing, orally or both?

Under the Whistleblowing Act (when it enters into force), the whistleblowing scheme must allow reporting either in writing, orally or both.

For sector-specific laws (financial sector), the channels need to allow reporting in writing (mandatory). The opportunity of oral reporting is voluntary.

c) Procedures for internal reporting and follow-up: does the Local Law require legal entities to adopt internal reporting systems with the following elements?

i) Channels able to ensure the confidentiality of the identity of the reporting person and the protection of third parties mentioned in the report:

Yes, the confidentiality of the reporting person’s identity must always be ensured.

ii) Acknowledgement of receipt of the report to the whistleblower within seven days of receipt:

Yes, acknowledgement of receipt must be provided to the whistleblower within seven days.

iii) The designation of an impartial function/team to manage follow-ups on reports and maintain communication with the whistleblower:

Yes, an impartial function/team must be appointed.

iv) Any other follow-up requirements including those for anonymous complaints:

No.

v) A reasonable timeframe to provide feedback, not exceeding three months from acknowledgment of receipt or if no acknowledgement was sent, three months from the expiry of the seven-day period after a report is made:

Yes, the entity must follow up “as soon as possible” and no later than three months from acknowledgement of receipt.

vi) Providing clear and easily accessible information on internal reporting procedures and external reporting procedures to competent authorities and/or EU institutions/bodies:

Yes, such information must be provided.

vii) Should legal entities take any additional measures in order to comply with the above requirements?

Legal entities must maintain written documentation demonstrating that the procedures of the internal reporting system described above.

5) Reporting channels: external

a) Has the country designated a competent authority to receive and investigate whistleblower disclosure and retaliation complaints?

Yes, the Danish Data Protection Agency (Datatilsynet) has been designated under the Whistleblowing Act.

b) Is an independent and autonomous external reporting channel already established in the country?

A number of sector-specific external reporting channels already exist, such as the ones maintained by eg the Danish Financial Supervisory Authority, the Danish Working Environment Authority, the Danish Environmental Protection Agency and the Danish Business Authority.

No general external reporting channel is established yet but will be when the Whistleblowing Act enters into force (see question above).

6) Processing of personal data

a) Is personal data concerning the reports processed in compliance with local and EU legislation such as EU Regulation 2018/1725 and local privacy laws?

Entities are required to process personal data in accordance with applicable data protection laws, including EU Regulation 2018/1725 (the GDPR) and the Danish Data Protection Act.

7) Record keeping of reports

a) Is there any obligation regarding record keeping of reports as provided for by the EU Directive?

Yes, under the Whistleblowing Act (when it enters into force), all reports must be registered, which include all documents received as part of the report. In addition, all oral reports must be documented by recording the conversation (subject to the whistleblower’s consent) or by drawing up exact minutes of the meeting or conversation which the whistleblower may approve afterwards.

Sector-specific legislation (financial sector) also require entities to document their follow-up measures in reports. 

8) Protection

a) Is there any difference between whistleblower protections in the private and public sectors?

There is no difference.

b) Are whistleblowers protected against all forms of retaliation including threats and attempts of retaliation? Which forms of retaliation are expressly indicated?

Yes. The Whistleblowing Act does not expressly indicate forms of retaliation that are prohibited, but the preparatory works of the Act (used for interpretation) include a large number of (non-exhaustive) examples, such as suspension, dismissal, demotion or failure to promote, transfer of duties, transfer of employment, salary reductions, changes in working hours, refusal of training activities, negative assessment of performance or negative employment references, intimidation, harassment or exclusion, discrimination, disadvantageous or unfair treatment, failure to convert a temporary employment relationship into a permanent one, damage to reputation (in particular on social media), blacklisting, etc.

c) Does the Local Law provide for any other measures of support such as those indicated in the EU Directive?

No.

d) Does the Local Law provide for the necessary measures to prohibit any form of retaliation against whistleblowers?

Yes, under the Whistleblowing Act (when it enters into force), whistleblowers are entitled to compensation if they are retaliated against or in case of attempts to prevent their reporting. In addition – as a main rule – a termination of an employment relationship in breach of the non-retaliation rule may be set aside by the courts in which case the employee must be reinstated (if the employee wants to be).

In addition, general employment law on unfair dismissal applies.

e) Does the Local Law provide for any remedial measures, including interim relief measures?

See answer to question 8d above.

f) Does the Local Law provide for exemptions from liability for whistleblowers?

Yes, under the Whistleblowing Act (when it enters into force), whistleblowers are exempt from liability in two cases:

  • When setting aside their statutory confidentiality where they reasonably believe the reporting (or public disclosure) was necessary to make a report within the scope of the Whistleblowing Act.
  • When acquiring or accessing information which is reported (or publicly disclosed), provided that such acquisition or access did not constitute a self-standing criminal offence.

g) Does the Local Law provide for sanctions against natural and legal persons that violate whistleblowers’ protection or the duty of maintaining the confidentiality of their identity?

The Whistleblowing Act does not provide for the possibility to fine organizations violating the whistleblower’s protection. Violation of the whistleblowers’ protection must be handled by other means such as through compensation claims.

Breach of the duty to maintain the confidentiality of whistleblowers’ identity by intent or gross negligence is punishable by fine.

Under sector-specific legislation (financial sector), entities violating the whistleblower’s protection can be fined.

h) Does the Local Law provide for sanctions in case of false reports?

Yes, reporting (or public disclosure) of intentional false information is punishable by fine.

9) Other issues

a) Under the Local Law, is adopting a whistleblowing system relevant to assess the adequacy of a compliance program? Does this have any value to mitigate or eliminate criminal liability for legal entities?

In general, no – at least not explicitly.

However, for sector-specific legislation (financial sector), whistleblowing systems are fundamental and necessary elements. The recipients of relevant parts of the legislation must have a scheme in place. If no scheme is in place or the scheme is incomplete, the entity is not in compliance and can be fined.

b) Does the Local Law or another law in your country provide for whistleblower reward programs?

No reward programs are envisaged.

c) Can companies benefit from any incentives in the case of voluntary self-disclosure of violations they became aware of following an internal report?

No.

d) Will implementing the EU Directive create any issues with obligations provided for under other laws / regulations?

No, currently this does not appear to be the case. As mentioned above, several sector-specific whistleblowing scheme requirements already exist but (the preparatory works to) the Whistleblowing Act states that where these laws conflict or overlap each other, the law that provides the best level of protection must be applied.


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