Luxleaks case reaches highest grade of judgement

Whitlseblowers currently have no protection under EU law. [Bennian/Shutterstock]

The hearing of the case against Antoine Deltour and Raphael Halet, who exposed corporate tax schemes, reached Luxembourg’s highest court on Thursday (November 23), after the European Parliament voted last month in favour of protection for whistleblowers.  EURACTIV France reports.

The two former staffers of auditors PricewaterhouseCoopers (PwC), at the origin of the LuxLeaks scandal, had leaked documents to the press, proving that the Luxembourg state granted tax rebates to certain multinationals, including Apple and Amazon.

On March 15, 2017, the Frenchman Antoine Deltour was sentenced on appeal to a six- months suspended sentence and a €1,500 euros fine for breaching business secrecy and leaking stolen information. Raphael Halet was fined €1,000 euros.

A lighter sentence compared to the first conviction, thanks to a court of appeal that partially recognised Antoine Deltour’s status of a whistleblower. The magistrates did not reproach him for leaking information in the press, but for making copies of documents to the detriment of his employer. The judges argued that at the time of copying these thousands of documents, Antoine Deltour had not yet intended to blow the whistle.

Now Luxembourg’s highest court will have to determine whether the appeal judges correctly applied the law. But after the “Panama Papers”, then the “Paradise Papers”, this trial could also take on a political dimension, at a time when European legislation is changing.

“If the Supreme Court of Luxembourg acquits Antoine Deltour, it would help the movement to recognize the status of whistleblowers in Europ,e” said Virginie Rozière, radical MEP on the initiative of a parliamentary report on whistleblowers.

Voted on 24 October, the text supported by the MEP is non-binding “but is a very strong political signal and calls on the Commission to act quickly,” she says.

The report establishes a very protective definition of the whistleblower: “It’s about focusing on the concept of alert. The whistleblower is characterised by the information it reveals. He must denounce acts contrary to the general interest. Parliament has also drawn up a list of types of information that could be disclosed. A general definition would have allowed the states to play on the words,” said the MEP.

“The text proposes the creation of an independent institution to which the whistleblower could turn. It would be responsible for establishing the merits of the alert,” said Jean-Marie Cavada, shadow rapporteur for ALDE. The former journalist also claims “the need to cover legal costs incurred by the person who leaked the information. It is also important to protect the whistleblower from any economic retaliation by the employer.”

France is one of six countries in the Union to have adopted a definition protecting whistleblowers. The two European rapporteurs are however dubious about the relevance of the French definition: the law requires that the person sends the alert within his company, to his direct supervisor, before contacting the press.

“This provision may make it impossible to denounce an offence when the incriminating behaviour is inherent in the activity pursued by the company,” said Virginie Rozière. “We do not see how the French law could protect a whistleblower like Antoine Deltour!”, she said.

On the hearing that opens in Luxembourg, Virginie Rozière remains cautious but raises a point that could lead the judges to overturn the appeal:

“On appeal, the president of the court had availed himself of the European directive on the protection of business secrets to convict Antoine Deltour. Yet, this directive contains an article protecting whistleblowers and stating that the public interest takes precedence over business secrecy! This point was not mentioned, ” said the MEP.

The Commission has not yet proposed a European whistleblower status. Brussels, however, organised a public consultation on the recognition of this status in early summer 2017.

“6,000 people have already participated in this consultation, it is ten times more than usual,” said Roziere.

If the Luxembourgish court was to confirm the appeal judgment, all eyes would then be on Strasbourg, Antoine Deltour having already stated his intention to appeal to the European Court of Human Rights in case of a conviction.