It was not a particularly severe sentence imposed by the Belgian Supreme Court in 2018, at least considering the financial dimensions that form the illustrious background of the case. Raphaël Halet, a former employee of the consulting firm PricewaterhouseCoopers (PwC), who, together with his colleague Antoine Deltour, had passed sensitive tax documents to a journalist, had to pay a fine of 1,000 euros. The two were whistleblowers in the “Luxleaks” affair about tax benefits for large international corporations.
And the revelations revealed deals between Luxembourg and international corporations that were able to reduce their tax burden to zero. the Southgerman newspaper and international media reported on it in 2014.
This Wednesday, the European Court of Human Rights (ECHR) negotiated a complaint by Raphaël Halet. Even a mild sentence is still a sentence, his lawyer Christophe Meyer said in the Strasbourg courtroom, so it can have a “chilling effect,” deterring potential imitators who want to go public with explosive findings. “Democratic societies need the protection of whistleblowers,” demanded the lawyer.
For the court, Raphaël Halet was only a second-class whistleblower
It is already the second round in Strasbourg for the whistleblower. In May, the ECtHR ruled against Halet – he considered the Belgian courts’ weighing up to be quite understandable. From their point of view, the damage to PwC’s reputation was so serious that the public interest had to take a back seat to it. Mind you: Not the interest in “Luxleaks” as a whole – no court in the world could deny that there is an overwhelming public interest in the revelations. The court was concerned with the documents specifically leaked by Halet. Firstly, it is not about the practices of the tax authorities themselves, secondly, much was already known through Antoine Deltour’s information. Halet has therefore appealed to the Grand Chamber of the ECtHR. The verdict will come in a few months at the earliest. It could become a building block for stronger protection for whistleblowers.
The case illustrates the fine line that whistleblowers walk. The Court did not consider Halet’s role in uncovering the affair to be significant enough to grant him the protection of the Human Rights Convention. It sees him as a second-tier whistleblower, if you will. And the questions from some judges on Wednesday also indicate that they are still critical of his role. The Danish judge Jon Fridrik Kjølbro said to Halet’s lawyer that he had always spoken of tax evasion in his pleadings. But the 16 documents leaked by Halet have nothing to do with criminal tax evasion. The French judge Mattias Guyomar didn’t seem too convinced either. There is always talk of a “scandal”: “Could we have a more precise definition if scandal does not mean illegal activities?”
It’s time to upgrade whistleblower protection
As early as 2008, the ECtHR had developed a catalog of criteria according to which it assessed the protection of whistleblowers. This includes the public interest in the information, the possibility of first reporting grievances to other bodies, the damage to the employer and the motives of the whistleblower. A consideration – the result of which is not so easy to predict. In February 2021, in another whistleblower case, the ECHR declared the dismissal of a clinic doctor to be legal. In his hospital, the Landesspital Liechtenstein, ten patients each died shortly after morphine administration. This struck the doctor as suspicious, he suspected illegal cases of active euthanasia and filed a complaint. The accusation dissipated after a detailed investigation, but an expert at least certified the doctor that from the initial point of view his suspicions were not unfounded. This is because one could get the impression from the documents that indications of an overdose had been deliberately avoided. Nevertheless, the ECtHR had no objections to the dismissal – even though the doctor only went to the police and not to the press.
In any case, upgrading the protection of whistleblowers would be in the course of time. A corresponding EU directive has been in force since the end of 2019. The deadline for its implementation expired on December 17, but in Germany there is still no law to protect whistleblowers, only a promise from the traffic light coalition to pass one. The Federal Ministry of Justice wants to present a draft in the course of the year – when exactly is still open.
Although the ECtHR is not a court of the EU but of the Council of Europe, it is an important factor in establishing effective protection. During the hearing, Irish judge Síofra O’Leary expressed a little surprise at the suggestion that the court should bring its 14-year-old case law on whistleblowing into line with the EU directive. Because the judgments of the Court of Justice already form the basis of the directive – as can be seen from the reasoning.