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The Grand Chamber of the European Court of Human Rights has emphasized that whistleblowers have a free expression right to reveal information about conduct that can generate public debate on whether it harms the public interest.
On February 14, 2023, the Grand Chamber of the European Court of Human Rights ruled that the criminal conviction of Raphaël Halet, one of the LuxLeaks whistleblowers, violated the European Convention of Human Rights. In its decision, the Court reaffirmed that whistleblowing is an exercise of free expression, which is protected under Article 10 of the European Convention of Human Rights.
The case began after Antoine Deltour, a former auditor at PricewaterhouseCoopers (PWC), released over 500 documents to journalist Edouard Perrin which revealed how PWC and the Luxembourg tax authorities had agreed to account measures that limited the tax liabilities of major corporations allowing them to avoid paying billions in taxes to countries across the world, reducing in some cases their income by 99 percent. In 2021, Deltour explained these facts during the VIRTEU International Symposium “The Professionals: Dealing with the Enablers of Economic Crime”, which is available on the Corporate Crime Observatory.
Halet later released 16 confidential tax returns and covering documents of well-known corporations to Perin, who used them in a follow-up television program to highlight how the companies were using the rules to avoid paying their taxes to the detriment of other countries.
In 2014, the International Consortium of Investigative Journalists coordinated the public release of the documents by a confederation of journalists in 30 countries as the LuxLeaks investigation. The revelations led to a worldwide outcry, investigations by the European Commission and Parliament, changes to EU law, including the EU Whistleblowing Directive, and a new global agreement on minimum tax payments by companies.
The investigations following the releases highlight how the problems that journalists and whistleblowers face in their investigations. PWC fired Halet and all three were prosecuted by Luxembourg authorities for a series of charges including theft from one’s employer, fraudulent access to a system, breach of commercial secrecy, breach of professional secrecy, and laundering and possession.
Deltour and Halet were initially convicted of a number of offenses and given fines and suspended jail sentences, while Perrin was acquitted. All three cases were reviewed again by an appeal court which acquitted Perrin, but it affirmed most of the charges against Deltour and Halet, ruling that Halet had not provided information that was “essential, new and previously unknown” and therefore was not protected as a whistleblower. At the highest court of Luxembourg, the Court of Cassation, Deltour was ruled to be fully protected as a whistleblower but Halet’s appeal was rejected.
Halet complained before the European Court of Human Rights (ECtHR) for a possible violation of the right to freedom of expression, which is provided for by Article 10 of the European Convention of Human Rights (ECHR).
In 2021, the ECtHR ruled that the conviction did not violate his rights. The decision was criticized by whistleblowers, journalists, academics, and free expression groups, and Halet asked the Grand Chamber to review it with the support of a series of third-party submissions.
The ECtHR had already clearly recognized whistleblowing as a protected activity under the right of freedom of expression since the Grand Chamber decision in Guja v Moldova in 2008. In that case, the Court held that six criteria must be fulfilled in order for a person’s disclosures to be protected as whistleblowing. These criteria are:
whether or not alternative channels for the disclosure were available;
the public interest in the disclosed information;
the authenticity of the disclosed information;
the detriment to the employer;
whether the whistle-blower acted in good faith
the severity of the sanction.
The criteria, while ground-breaking at the time, have been criticized as too restrictive and had led to a series of inconsistent ECtHR cases. The Grand Chamber in Halet declined to substantially revise the criteria, instead describing its decision as “confirm[ing] and consolidating” the principles and “refining” the criteria in light of international developments. The Court took note of a variety of advances in the field including the UN Special Rapporteur David Kaye’s report in 2015, Council of Europe (COE) Recommendation (2014)7, and the EU Whistleblowing Directive, which it extensively quoted.
The Grand Chamber clarified inter alia that disclosing to internal channels is not always necessary, especially in cases where there is no unlawful conduct and thus no formal channel to complain to; that what is important is the “de facto working relationship of the whistle-blower, rather than his or her specific legal status”; and that a whistle-blower cannot be required to “establish the authenticity of the disclosed information.” However, the Court retained the regressive “good faith” principle not found in the EU Directive or COE recommendations. It also broadened the consideration of the detriment to the organization not found in the Directive.
The most significant change made by the Court related to assessing the public interest. The Court found that there are three categories of information that can be released as being in the public interest:
unlawful acts, practices, or conduct in the workplace
acts, practices, or conduct which, although legal, are reprehensible
to a matter that sparks a debate giving rise to controversy as to whether or not there is harm to the public interest
The last category was not previously stated in Guja and subsequent cases and is interesting in that it expands the types of information that can be disclosed. In this category, disclosures of a wide range of potential information, which can generate discussions on the public interest about how a government, as well in some cases private bodies, operate, can be protected. It also noted that the public interest could be supranational. This addition sparked an angry dissent led by the judges appointed by Luxembourg and Monaco, as well as Italy and Georgia, who generally seem to not like the idea of whistleblower protection.
This would seem to bring whistleblowing closer to the well-established “right to know” principles found in the freedom of information laws and international free speech laws.
However, at the same time, the Court made clear that the weight of the public interest in disclosure is weaker for the third category than for illegal or reprehensible acts so the information disclosed needs to be of higher interest in the last category. It will have to be determined on a case-by-case basis.
In finding for Halet, the Court rejected the idea that only an initial disclosure should be protected and the Luxembourg courts’ assessment that the information was not essential, noting that it could be considered as “alarming or scandalous” and “provided fresh insight” and contributed to the continued public discussion about tax avoidance, noting the investigations, changes to EU law and other fallout from the disclosures. Interestingly, the Court also emphasized “that the purpose of whistle‑blowing is not only to uncover and draw attention to information of public interest but also to bring about change in the situation to which that information relates, where appropriate, by securing remedial action by the competent public authorities or the private persons concerned, such as companies.”
The potential range of incidents covered under the decision is broader than those found in the EU Directive, creating the possibility of protections in those countries beyond the national implantations of the Directive if the full set of criteria is met by the whistleblower. However, the hurdles to be met by the whistleblower under the two systems are different and protection may be limited if good faith and harm are considered.
The 46 member states of the Council of Europe are required to take into consideration ECtHR’s decisions but in practice, this often is not reflected in national legislation, especially when there is an EU Directive on the same subject. Therefore, it remains to be seen how this will work in the EU 27, much less the rest of the COE.
Suggested citation Bluebook: David Banisar, The European Court of Human Rights Protects Luxleaks Whistleblower, CORPORATE CRIME OBSERVATORY, (Feb. 22, 2023), www.corporatecrime.co.uk/post/ecthr-luxleaks-whistleblower
Harvard: Banisar, D. (2023) ‘The European Court of Human Rights Protects Luxleaks Whistleblower’. Corporate Crime Observatory. Available at: www.corporatecrime.co.uk/post/ecthr-luxleaks-whistleblower
OSCOLA: David Banisar ‘The European Court of Human Rights Protects Luxleaks Whistleblower’, (Corporate Crime Observatory, 22 February 2023),<www.corporatecrime.co.uk/post/ecthr-luxleaks-whistleblower>
Download the article in pdf format:
Download the ECtHR Judicial Decision of First Instance (CASE OF HALET v. LUXEMBOURG, Application no. 21884/18, May 11, 2021), before the referral to the Grand Chamber :
Download the ECtHR Judicial Decision of the Grand Chamber (CASE OF HALET v. LUXEMBOURG, Application no. 21884/18, February 14, 2023):
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