LuxLeaks back in court as Halet case reaches Grand Chamber

LuxLeaks whistleblower Raphael Halet's latest appeal was heard at the European Court of Justice's Grand Chamber earlier this week, on Wednesday 2 February.

The Grand Chamber allows for the reconsideration of issues that have already been before the Strasbourg Court. Blueprint for Free Speech, in collaboration with a number of whistleblower protection, tax justice and freedom of expression organisations, has submitted a third party intervention in this case.

It is now over a decade since the issues highlighted in the LuxLeaks disclosures first came to light. In 2011 French investigative journalist Edouard Perrin made contact with PwC analyst Antoine Deltour and obtained access to confidential information about Luxembourg's preferential tax arrangements with major multinational companies. These 'comfort letters' meant that other EU member states were deprived of millions of Euros in tax revenue.

The revelations were initially broadcast on French TV. Raphael Halet was the second whistleblower, who obtained documents that backed up Antoine Deltour's claims and were featured in a subsequent programme.

Several years after, the LuxLeaks documents were published by the ICIJ and journalists from publications worldwide. Jean Claude Juncker, former Luxembourg Prime Minister, became President of the European Commission. The upcoming uproar drew particular attnetion to the role fo whistleblowers within the EU and was one of the factors that gained momentum for the EU Whistleblower Directive to be passed in 2019.

Part of the aftermath also saw Deltour, Halet and Perrin charged in connection with the publications. Deltour and Halet were initially found guilty by the Luxembourg court and, after a succession of hearings in national courts, the case was eventually appealed to the European level. At this point, Halet is the only LuxLeaks whistleblower whose case is still live. He has previously described the enormous pressure he was put under by his employers to back down from his disclosures.

What is at issue in the current hearing? Luxembourg agrees that Halet is a whistleblower, but holds that his acquisition of documents - an act integral to his whistleblowing - should attract sanction because it caused commercial damage to his employer. One of the reasons given by the Luxembourg court for the ruling was that Halet was not the first LuxLeaks whistleblower, but that his disclosures had followed those of Antoine Deltour. In May 2021, the European Court of Human Rights upheld Halet’s conviction; this is now being challenged.

This is a nonsense that fundamentally compromises the principle that a whistleblower should not be punished for acting in the public interest. Whistleblowers often require original source documents to make their case. PwC was not a victim in the LuxLeaks case, rather it was a prime actor in a tax avoidance scandal that made waves across the continent.

As Halet's lawyers argued in the Grand Chamber this week, at no point has it been suggested that Facebook whistleblower Frances Haugen be prosecuted for sharing internal documents from the company with the Wall Street Journal and international legislators. Halet's disclosures, like Haugen's were clearly in the public interest. Frances Haugen was not the first whistleblower to come forward with concerns about Facebook either.

No date has been given for the ruling. Video of Wednesday's hearing is available online.