Posted 14 Feb. 2023 at 5:15 PMUpdated Feb 14. 2023 at 19:07
It is a decision that caused a stir among French financial magistrates. The European Court of Human Rights (ECHR) has just recognized the whistleblower status of Raphaël Halet, one of the Frenchmen behind the leaked documents in the so-called “LuxLeaks” affair. The Grand Chamber of the ECHR, whose judgments are final, on Tuesday condemned Luxembourg to pay him damages. The judges considered that there had been “violation of the freedom of expression of a whistleblower because of his criminal conviction”.
The case dates back to 2012-2014: tax returns and rulings prepared by the audit firm PwC were exposed in the open in several media. “These publications highlighted a practice, over a period extending from 2002 to 2012, of very advantageous tax agreements between PwC on behalf of multinational companies and the Luxembourg tax administration”, describes the ECHR.
Professional secret
Following these revelations, an internal PwC investigation revealed that Raphaël Halet, who worked for the audit firm, had disclosed part of the confidential documents – obtained at his workplace – while they were protected by secrecy. professional. The firm filed a complaint against its employee and obtained a conviction: the Frenchman, who was also dismissed, had to pay a fine of 1,000 euros.
Raphaël Halet then invoked in court a “disproportionate interference with his right to freedom of expression”, but lost at first instance before the ECHR, in May 2021. He then brought the case before the Grand Chamber of the Court.
In the judgment rendered on February 14, the latter considers that the public interest of the revelations outweighs their harmful effects. The Court indicates that it wants, with its decision, “to confirm and consolidate the principles that emerge from its case law on the protection of whistleblowers”.
Its guidelines are as follows: the information disclosed was “authentic”, the informant was “in good faith” (he acted neither to enrich himself nor to harm his business) and the transmission to the media was justified in the public interest and the fact that there is nothing illegal about these “routine business activities in themselves”.
Tax avoidance debate
Finally, the Court emphasizes the scope of the case. The documents shed “new light, the importance of which should not be underestimated in the context of a debate on tax avoidance, tax exemption and tax evasion, by providing information both on the amount of profits declared by the multinationals concerned, on the policy choices made in Luxembourg with regard to corporate taxation, as well as on their impact in terms of fairness and tax justice, at European level and, in particular in France “.
For the record, in 2017, following the “LuxLeaks” and with the assistance of the European Commission, the Grand Duchy changed its rules, in order to fight against abusive tax arrangements.