At stake are the preservation of professional secrecy on the one hand, and freedom of the press and protection of whistleblowers on the other. The three men are accused of leaking over 30 000 confidential documents revealing the tax deals concluded by large multinational companies with the Luxembourgish fiscal authorities. A verdict will be reached on June 29th.
In October 2010, Deltour copied documents concerning tax rulings from his former employer, the consultancy firm PriceWaterhouseCoopers (PwC), and transferred them to the journalist Perrin, who subsequently exposed the Luxembourgish tax optimisation practices in a television report on France2 in 2012. After seeing this report, Halet, another former PwC-employee, transferred 16 more confidential fiscal documents to Perrin, the contents of which were published in 2014 by the International Consortium of Investigative Journalists (ICIJ), of which Perrin is a member. PwC pressed charges, the firm is civil party in the ensuing proceedings.
Deltour, Halet and Perrin are accused of multiple infractions of the Luxembourgish Criminal Code: theft of confidential documents (Article 462), fraudulent access to their former employer’s database (Article 509-1), laundering (Article 506-1) and violation of professional secrecy (Article 458). According to reports on the trial, the Public Prosecutor claims that neither Deltour, nor Halet are whistleblowers, this being merely a defense constructed after the fact: they stole documents and infringed criminal law, for which justice must be served. Accordingly he asked for an 18 month-prison sentence and the payment of a fine, although not opposing a suspended sentence, while PwC asked the payment in damages of a symbolic euro.
Though acknowledging Perrin’s right to freedom of expression and freedom of the press, the Prosecutor accused the journalist of complicity in the alleged perpetration of illegal acts by Halet, asking for the payment of a fine, despite Halet having taken full responsibility for his actions in his testimony. The attorneys of all three defendants asked the Tribunal for their release, their defense relying heavily on the jurisprudence of the European Court of Human Rights and the belief that public morality supports them. The Luxembourgish Law of 13 February 2011 on Strengthening the Means for Fighting Corruption affords whistleblowers protection for violating professional secrecy, but only when illegal practices are denounced within their organisation or to the competent authorities (Article 1), not when they are denounced to the media. Moreover, the Luxembourgish judge affirmed during his questioning of Deltour that the exposed tax rulings are not illegal in Luxembourg.
It now remains to be seen whether the Tribunal will consider their actions to be justifiable as those of whistleblowers meriting protection, and whether or not it will consider that the jurisprudence of the European Court of Human Rights protecting whistleblowers can apply to this case, or whether the Tribunal will qualify their actions as simple violations of the Luxembourgish Criminal Code.