Does the reporting obligation also apply below fifty employees?

Some sectors also fall below the fifty-employee threshold

Yes, for a limited number of sectors, the reporting obligation applies even with fewer than fifty employees. The fifty-employee threshold is the main rule, but both the Dutch Whistleblower Protection Act and the German Whistleblower Protection Act contain exceptions for sectors where oversight and integrity carry extra weight. In the Netherlands, these are financial services, products and markets, prevention of money laundering and terrorist financing, civil aviation, maritime labour and port state control, and offshore oil and gas activities. In Germany, these are securities services and investment firms, and prevention of money laundering and terrorist financing.

For an organisation operating in one of these sectors, the number of employees therefore does not count when determining whether an internal reporting channel must be established: it must exist in any case, even with a handful of staff. Outside these sectors, the fifty-employee threshold applies as the normal lower limit. A statement or piece of advice that simply asserts that there is no reporting obligation below fifty employees is therefore incorrect for these exceptional cases — the sector in which an organisation operates is at least as determining as the number of employees.

Where this is laid down: Article 8 of the Directive and the national laws

The basis for this exception lies in Article 8 of Directive (EU) 2019/1937, which requires Member States to impose a reporting channel for certain entities regardless of their size. The Netherlands has implemented this in Article 2, 2a and 2b of the Whistleblower Protection Act, covering the sectors of financial services, money laundering and terrorist financing, civil aviation, maritime labour and offshore oil and gas. Germany has followed the same approach in § 12 para. 3 of the Whistleblower Protection Act, which designates securities services, investment firms and prevention of money laundering and terrorist financing as sectors with no lower threshold.