Just a week before the publication in Spain of Act 2/2023 of February 20th, 2023, regulating the protection of persons who report regulatory infringements and of fight against corruption, transposing Directive 2019/1937 of the European Parliament and Council of 23rd October 2019, better known as the Whistleblowing Directive, the Grand Chamber of the European Court of Human Rights has ruled the Halet v. Luxembourg Judgement, reaffirming the criteria applied in Guja v. Moldova Judgment and becoming a new benchmark in the field of Whistleblowing.
The Grand Chamber of European Court of Human Rights has issued Judgment of the case Halet v. Luxembourg on February 14th, 2023 in which it concerns the balance between the right of the freedom of expression stated in article 10 of the European Convention of Human Rights (from now on, ECHR), and the statutory and legal duties of professional secrecy in a business context.
Regarding the facts of the case, a former employee of PricewaterhouseCoopers (from now on, PwC), A.D, transmitted confidential tax information of PwC to the journalist E.P, information which was eventually published by various media outlets including a television program shown in 2013.
The applicant was dismissed by PwC and convicted in criminal proceedings, since the state of Luxembourg did not grant him the defense of whistle-blower status. The national Courts denied violation of Article 10 ECHR, because the disclosure to the media of confidential PwC documents was considered to be of insufficient public interest to counterbalance the harm caused to the company.
However, in its Sentence of February 14th, the Grand Chamber in Strasbourg noted an interference with the applicant’s exercise of his right to freedom of expression, for the reasons that will be briefly set forth below.
Firstly, the general principles established in the Court’s case law have been inspired by the Guja v. Moldova Judgment, which identified for the first time the relevant criteria to follow when assessing wether divulging confidential information on a workplace could be covered by the protection of Article 10 ECHR. According to this case-law, the protection enjoyed by whistle-blowers needs to take into account the duties of loyalty, reserve and discretion, which are inherent in subordinate relationships and statutory duty of secrecy, among others.
On the other hand, with regard to the protection of whistle-blowers, the Court defines six cumulative criteria that have to be accomplished in order to consider the divulgation of corporate confidential information as justified: (1) The channels used to make the disclosure. In this regard, the internal hierarchical channel is, in principle, the best mean, (2) The authenticity of the disclosed information, (3) Good faith when filling the complaint, (4) Public interest of the disclosed information, (5) Balance between the detriment to the employer and the public interest in the disclosed information, and (6) Severity and proportionality of the sanction imposed to the whistle-blower.
By virtue of the foregoing, in the Halet v. Luxembourg resolution the Grand Chamber of the ECHR stated that the national Court of Appeal had failed to take sufficient account to the specific features of the case and considered that the harm caused to PwC did not outweigh the general interest, since it undeniably contributed to provide fresh insight and an important debate of tax avoidance, tax exemption and tax evasion at a national and European level. Therefore, the Court stated violation of article 10 ECHR concerning the applicant’s right to freedom of expression and freedom to impart information. The decision has five dissenting opinions.
Molins’ Internal Investigations team presents a summary of 2022, with a brief summary of the milestones set by the last exercise on private inquiries within the company. Although the discipline is still at its beginning in Spain, last year was fecund in terms of the validity of evidence obtained by video-surveillance systems, with a ruling by the Plenary of the Constitutional Court and another by the Plenary of the Social Court.
The evolution of the sector in Europe, marked by the transposition of Directive (EU) 2019/1937 on Whistleblowing, has also been observed. At the international level, the draft guide on the conduct of internal investigations, prepared by the International Organization for Standardization (ISO/DTS 37008), stands out.
