Updated with quotes from the ruling below
A Luxembourg appeals court has upheld the convictions but reduced the sentences of two former PwC employees who blew the whistle on rampant tax evasion. In 2014, it was revealed that Antoine Deltour and Raphael Halet passed confidential tax rulings, documenting widespread multinational tax avoidance, to journalists. The ICIJ published the documents as LuxLeaks, in a release that directly implicated the president of the European Commission Jean Claude Juncker. Just this week, EU Competition Commisioner Margrethe Vestage has confirmed that the disclosures were justified.
Deltour and Halet were convicted of theft and breaking secrecy laws, and Deltour was given a 12-months suspended prison sentence. Edouard Perrin, a journalist involved in the initial wave of disclosures, was one of the original defendants alongside the whistleblowers, but he was acquitted. All three rulings were appealed, and today an appeals court has confirmed the convictions but reduced Deltour’s suspended sentence to six months.
The appeal ruling was swiftly condemned by a number of MEPs:
— Julia Reda (@Senficon) March 15, 2017
— FabioDeMasi (@FabioDeMasi) March 15, 2017
— Jan Philipp Albrecht (@JanAlbrecht) March 15, 2017
In a statement released by his support network, Deltour responded: This disappointing judgment constitutes an additional argument for going ahead with recent European initiatives towards whistleblowers’ protection”.
As the support network explains, the decision “presents a disturbing contradiction: it recognizes the whistleblower’s role and the public interest of the revelations but anyhow concludes on a condemnation. Once again, private financial interests seem to take priority over the collective interest and the rights for information. This sentence postpones the expected change of era in Europe regarding tax issues, whistleblowers’ protection and the right of information.”
The appeals court has missed an opportunity to right an obvious wrong. This ruling should give new impetus to the movement to institute whistleblower protections on an EU level. The European Commission is currently running a public consultation, with a closing date on 29 May 2017.
Antoine’s support group notes, “Deltour will go through the arguments presented in the written judgment before deciding whether or not to go to a possible appeal to the Court of Cassation.”
The Luxembourg Court of Appeals’ ruling is now online (French). Notably, the court discusses the defendants’ invocation of Article 10 of the European Convention, which protects freedom of expression. However, as the ruling notes, the whistleblowers “do not intend to invoke Article 10 of the Convention as a cause of justification, but instead, ask the Court of Appeal to ascertain whether the infringement their right to freedom of expression, in particular their right to impart information, or is not necessary in a democratic society.”
Importantly, the court acknowledges that the LuxLeaks release was in the “general interest.” The court writes, “This essential freedom [of expression], enshrined by a supranational text, can not be defeated by internal national rules. Thus, in the context of a debate on an issue of general interest on tax avoidance, tax exemption and tax evasion, freedom of expression of the whistleblower may, if necessary and under certain conditions prevail and be used as a fact justifying the violation of national law.”
Deltour’s support team remarks, “For the first time, a European national judge recognizes the legitimacy of violating the professional secrecy for the general interest. It is an unquestionable moral victory.”