THIRD SECTION
CASE OF HALET v. LUXEMBOURG
(Application no. 21884/18)
 
 
JUDGMENT
 
Art 10 • Freedom of expression • Criminal fine of EUR 1,000 for disclosing to the media confidential documents from a private-sector employer (“Luxleaks”), of insufficient public interest to counterbalance the harm caused • A priori whistle-blower within the meaning of the Court’s case-law • Proportionality of the penalty • Fair balance struck between the competing interests through a detailed analysis by the domestic courts
 
STRASBOURG
11 May 2021
 
 
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 14/02/2023
 
This judgment may be subject to editorial revision. In the case of Halet v. Luxembourg,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Paul Lemmens, President,
 Georgios A. Serghides,
 Georges Ravarani,
 María Elósegui,
 Darian Pavli,
 Anja Seibert-Fohr,
 Peeter Roosma, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 21884/18) against the Grand Duchy of Luxembourg lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Raphaël Halet (“the applicant”) on 7 May 2018;
the decision to give notice to the Luxembourg Government (“the Government”) of the complaint concerning Article 10 of the Convention and to declare inadmissible the remainder of the application;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments received from the association Maison des lanceurs d’alerte, which had been granted leave to intervene by the President of the Section to which the case was initially allocated,
Noting that the French Government, invited, if they so wished, to submit written observations (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court) in view of the applicant’s nationality, had informed the Court that they did not intend to avail themselves of the right of intervention,
Having deliberated in private on 30 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicant’s criminal conviction in the context of the so-called Luxleaks case, in which the domestic courts rejected his argument that he had acted as a whistle-blower. He relies on Article 10 of the Convention. THE FACTS
2. The applicant was born in 1976 and lives in Viviers. He was represented by Mr C. Meyer, a lawyer practising in Strasbourg. 3. The Luxembourg Government (“the Government”) were represented successively represented by an ad hoc Agent, Mr Christophe Schiltz, Head of the Legal Department of the Secretariat General at the Ministry of Foreign Affairs, and subsequently by their Agent, Mr David Weis, of the Permanent Representation of Luxembourg to the Council of Europe. THE BACKGROUND TO THE CASE
4. The applicant was employed by the company PricewaterhouseCoopers (“PwC”), which provides auditing, tax advice and management consultancy services. PwC’s activity consists, in particular, in drawing up tax declarations in the name and on behalf of its customers, and in requesting advance tax rulings from the tax authorities. These rulings, which concern the application of fiscal law to future operations, are known as “Advance Tax Agreements” (“ATAs”), “tax rulings” or “tax rescripts”. They are referred to below as tax rescripts. 5. The applicant submits that, while employed by PwC, he coordinated a five-person team and held a post which was not minor, but, on the contrary, was at the heart of PwC’s activity, which consisted in obtaining the best possible treatment for its clients from the Luxembourg tax authorities. This description is challenged by the Government which, relying on the findings that the trial court in the present case would reach, submit that, at the relevant time, the applicant carried out the tasks of an administrative employee, and that his duties consisted in gathering, centralising, scanning, saving and dispatching tax declarations to the clients concerned. 6. Between 2012 and 2014 several hundred tax rescripts and tax declarations prepared by PwC were published in various media outlets. These publications draw attention to a practice, over the period from 2002 to 2012, of highly advantageous tax agreements, concluded between PwC on behalf of multinational companies and the Luxembourg tax authorities. 7. An internal investigation by PwC established that on 13 October 2010, the day before he left PwC following his resignation, an auditor, A.D., had copied 45,000 pages of confidential documents, including 20,000 pages of tax documents, corresponding to 538 folders of tax rescripts. He had handed these over to a journalist, E.P., in the summer of 2011, at the latter’s request. 8. A second internal investigation by PwC led to the applicant’s identification. Following the media’s disclosures about certain of the tax rescripts copied by A.D., the applicant had contacted E.P. in May 2012, offering to hand over other documents. The journalist eventually agreed to this offer, and the sixteen documents, specifically fourteen tax declarations and two covering letters, were handed over between October and December 2012. Some of these documents were used by the journalist in a second television programme, Cash Investigation, broadcast on 10 June 2013, a year after the first broadcast. On 5 and 6 November 2014 the sixteen documents were also put online by an association of journalists known as the “International Consortium of Investigative Journalists” (“ICIJ”). Its authors described this publication as “Luxleaks”. It appears from press articles that the Luxleaks affair led to “a difficult year” for PwC, but that, once this period had passed, the company experienced a growth in turnover which was accompanied by a significant increase in its workforce.
the criminal proceedings brought in the case
9. On a complaint by PwC, A.D., the applicant and E.P. were charged by an investigating judge and committed for trial before the Luxembourg District Court by the investigating court. The first-instance judgment
10. On 29 June 2016 the Luxembourg District Court, ruling on major offences, convicted A.D. and the applicant of theft from one’s employer (vol domestique), fraudulent access to a system for the processing or automatic transmission of data, betrayal of commercial secrets, breach of professional confidence and laundering and possession (blanchiment-détention). 11. A.D. was sentenced to a twelve-month prison term, suspended in its entirety, and to a fine of 1,500 euros (EUR). The applicant was sentenced to a nine-month prison term, suspended in its entirety, and a fine of EUR 1,000. In addition, they were ordered to pay a symbolic sum of one euro to PwC as civil-law compensation in respect of non-pecuniary damage, PwC having limited its claim as the civil party to that amount. 12. E.P. was acquitted, on the grounds that he had not taken part, for the purposes of the law, as a co-perpetrator or accomplice, in the applicant’s betrayal of commercial secrets or breach of professional confidence. Judgment of the Court of Appeal
13. A.D. and the applicant lodged criminal-law and civil-law appeals against the above judgment. The public prosecutor lodged a criminal-law appeal against the same judgment in respect of the A.D., the applicant and E.P. 14. On 15 March 2017 the Court of Appeal of the Grand Duchy of Luxembourg delivered its judgment. 15. Before analysing the merits of the case, the Court of Appeal noted that “[the applicant’s] public accusations, through communication of the tax declarations [of multinational companies], [were] related to the practice, initially criticised by [A.D.], of issuing tax rescripts that [were] advantageous to these multinational companies”. In the same context, it also stated that “under the case-law of the European Court of Human Rights, the lawfulness or illegality of the disclosed act or conduct is not a criterion in decided whether to grant whistle-blower status, since the disclosed information might even concern a particular shortcoming or questionable practices...”.
16.

Outcome for Article 10: no_violation