Guilty Pleasures

Halet v. Luxembourg [GC]

Tiepolo, Time Unveiling Truth (c. 1745–1750)

In a landmark decision by the Grand Chamber of the European Court of Human Rights, the case of Halet v. Luxembourg has set a new precedent for the protection of whistleblowers. This ruling comes just in time for the adoption of whistleblower legislation in countries like Spain, further reflecting the growing recognition of whistleblower rights in Europe.

Raphaël Halet, a former employee of PricewaterhouseCoopers (PwC), was convicted of disclosing confidential tax documents to the media concerning the tax practices of multinational companies (the infamous LuxLeaks). The case revolved around a critical balance between Halet’s right to freedom of expression under Article 10 of the European Convention on Human Rights and his duty to maintain professional secrecy at PwC.

The Background

Halet handed over 14 tax returns and two covering letters to a journalist, who used them to expose questionable tax arrangements between multinational companies and Luxembourg’s tax authorities. Following his actions, Halet was dismissed by PwC and later fined €1,000 in criminal proceedings for breaching professional secrecy. The initial Chamber judgment of May 11, 2021, found no violation of Article 10, concluding that the public interest in the disclosed information did not outweigh the damage caused to PwC (§ 5). However, on February 14, 2023, the Grand Chamber reversed this decision.

The Six Whistleblowing Criteria

Drawing on the principles established in Guja v. Moldova, the Grand Chamber reiterated the six key criteria to assess whether a whistleblower can claim protection under Article 10 (§§ 114-154):

1. The Channels Used: Public disclosure should only be a last resort. However, in Halet’s case, internal channels were ineffective, and direct disclosure to the media was justified (§§ 121-123).
2. Authenticity of the Information: The documents provided by Halet were accurate and authentic, meeting this criterion (§§ 124-127).
3. Good Faith: Halet acted without seeking personal gain, demonstrating good faith (§§ 128-130).
4. Public Interest: The disclosed documents contributed significantly to an ongoing debate about tax evasion in Europe, making the public interest undeniable (§§ 131-144).
5. Detriment Caused: While PwC suffered reputational damage, the Grand Chamber ruled that the public interest in revealing the tax practices outweighed this detriment (§§ 145-148).
6. Severity of the Sanction: The fine of €1,000, though relatively small, was deemed disproportionate given the significant public interest in the information disclosed (§§ 149-154).

A Shift in the Court’s Approach

One of the most notable aspects of the judgment is the Grand Chamber’s nuanced balancing of the competing interests. The court emphasized the critical role whistleblowers play in democratic societies, particularly in exposing matters of public interest (§§ 132-134). It also underlined the changing European landscape, noting the developments in legal protections for whistleblowers at both the national and EU levels.

The judgment was not without its controversies. The dissenting opinions of Judges Ravarani, Mourou-Vikström, Chanturia, and Sabato, who voted against the majority decision, raise thought-provoking points about the limits of whistleblower protections and the importance of professional secrecy (Joint Dissenting Opinion ). Judge Kjølbro also dissented, highlighting concerns about the proportionality of the sanction and questioning whether the public interest truly outweighed the harm caused.

A Victory for Whistleblowers

Ultimately, this ruling in Halet v. Luxembourg establishes a clearer path for whistleblowers seeking protection under Article 10. With the Grand Chamber finding a 12-5 majority in favor of Halet, the decision consolidates the European Court’s previous case-law on whistleblowing and freedom of expression.

So, what do you think? Should whistleblowers like Halet receive greater protection under Article 10, even at the cost of breaching professional secrecy? Do you agree with the dissenting judges, or is the majority view a necessary stance to foster transparency?

Let me know your thoughts!