Luxleaks: European Court reconsiders criminalization of whistleblowing

February 04, 2022
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This week the European Court of Human Rights once again considers whistleblowing protection.

In 2012, while working at the  international accountancy firm PriceWaterhouseCoopers (PwC), RaphaĆ«l Halet passed documents to an investigative journalist. The information was part of the journalist’s investigation - known globally as the ‘LuxLeaks’ - into significant tax avoidance schemes by multinationals through Luxembourg.  Halet was prosecuted and convicted of breaching corporate secrecy. The other whistleblower in the case, Antoine Deltour, received a 12-month suspended sentence but was ultimately cleared of any wrongdoing.

Ten years on, the Halet case is being heard a second time at the European Court of Human Rights (ECtHR) - this time by the Grand Chamber.

That hearing took place this Wednesday 2 February 2022.

The original ECtHR decision caused significant alarm among whistleblower protection experts, some of whom submitted third-party interventions in the case. 

Watch along: Webcast of Grand Chamber hearing (in French and English)

Halet had originally complained to the Court that criminalising his whistleblowing was contrary to his Freedom of Expression rights under Article 10 the European Convention of Human Rights ECHR).

The Court has confirmed in previous case law that Article 10 affords special protection to whistleblowers as ‘small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large.’

Read more: Council of Europe Handbook on Protecting the right to Freedom of Expression

In 2021 the Court held that Halet’s criminal conviction did not constitute a breach of his Article 10 rights. Though the information Halet revealed was found to be of public interest, his right to exercise his freedom of expression by revealing information related to wrongdoing needed to be balanced against the rights of others.

The rights of others in this case included the ‘conflicting interests’ of the commercial and reputational success of his employer, PwC, the second largest provider of professional services in the world.

The Court initially endorsed the approach of the Luxembourg Courts that the public interest in the information was not so sufficient as to outweigh a damage alleged by PwC because the information Halet disclosed was not ‘essential, new and hitherto unknown.’

Whistleblowing, anti-corruption, and tax justice advocates were alarmed at the decision.  By considering whether the information disclose is new, essential or unknown, legal experts argue the Court introduced a new criterion not found in any of the whistleblowing laws in the world and sets a dangerous precedent. 

The judgement, it has been argued, significantly weakened the protection of whistleblowers in Europe and was now in direct conflict with the new European Union Directive on Whistleblowing EUDir2019/1937, the spirit of the Council of Europe’s 2014 Recommendation on the protection of whistleblowers CM/Rec(2014)7, as well as the Court’s own prior case law.

Given the serious implications of the case, several civil society organisations requested third party status under Rule 44 of the Court.  WIN Members, the Maison de Lanceurs d’Alerte in France, the Whistleblower-Netzwerk e.V. in Germany, and other NGOs submitted written interventions to provide the Court with expert analysis and guidance on the emerging consensus on whistleblower protections.

Read in full: NGO Media Defence Third Party Intervention

The Grand Chamber of ECtHR has an important opportunity to reconsider the principles already established by the Court (see Guja v Moldova) on whether the interference with Halet’s Article 10 rights was ‘necessary in a democratic society.’ The referral of the case will also allow the Court to assess whether its current criteria provide effective protection for those who reveal information in the public interest, particularly for corporate whistleblowers - ie. individuals exposing wrongdoing in the private sector.

Halet and his supporters must now wait for the Chamber to deliberate on its decision.

Helpful resource: UNESCO Guide for Amicus Curiae Interventions in Freedom of Expression Cases
Read in full: Halet v Luxembourg 11 May 2021 Judgement

Photo credit: Gerry Huberty

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