Are NDAs legally binding in Germany? A guide for employers [2024]

When you’re hiring in Germany, whether your workforce will be comprised of independent contractors, full-time employees, or both, you likely intend to rely on non-disclosure agreements (NDAs) to protect sensitive information that could harm your company should it become public.

As elsewhere in the world, including Canada, France, and the UK, German lawmakers have kept a close eye on employers who intend to misuse non-disclosure agreements to silence whistleblowers. We’ll discuss this in further detail later.

All of this has employers asking: Can you enforce an NDA in Germany? And, how can you use non-disclosure agreements to protect your company and its employees? This guide will answer these and other questions.

(Note: This guide is for informational purposes only and is not intended to provide legal advice.)

What is an NDA?

Although the best way to ensure sensitive information remains confidential is to keep it to yourself, at times, you need to disclose it to others. You might find yourself in this situation when you’re negotiating with a potential new partner, bringing an attorney or financial advisor on board, or hiring a new employee.

The party you share the information with, be it trade secrets or intellectual property, agrees not to share the info with any third parties for a specified amount of time by signing an NDA. This is a legally binding contract that protects confidential information. If it’s breached and confidential information is shared with a third party, the violating party will face serious legal consequences.

Something else to keep in mind: In July 2023, the German Whistleblower Protection Act came into effect. It is designed to protect whistleblowers from retaliation by their employers and it obliged all companies with at least 50 employees to establish internal reporting channels.

Are NDAs enforceable in Germany?

Yes, NDAs are enforceable in Germany. German courts have a surprisingly straightforward system for NDAs (considering they’re a nation well known for having a complex bureaucracy). Here are a few more pieces of information you should be aware of:

• The rules surrounding NDAs are different if you’re negotiating with a potential business partner than signing a non-disclosure agreement with an employee. In the case of the former, certain confidential information is expected to be kept between the two parties even though there is no formal, written NDA. The same is not true for employer-employee relationships.
• The German government recently passed legislation that prevents whistleblowers from being retaliated against by their former or current employer. Furthermore, bullying, stalking, sexual harassment, and other forms of violent and serious behavior will not be tolerated in the workplace.

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