Law and Subversion - W. Kaleck's Blog on ZEIT ONLINE

LuxLeaks – public interest on trial

Since I started this blog, I planned to feature contributions from colleagues who inspire and motivate me. Today’s blog was written by Parisian lawyers William Bourdon and Apolline Cagnat. Bourdon and Cagnat act as cooperating lawyers for ECCHR and defended whistleblower Antoine Deltour in the LuxLeaks trial in Luxembourg.
 
In November 2014 former Pricewaterhouse Coopers employee Antoine Deltour revealed that multinational corporations in Luxembourg had profited for decades from tax deals with finance officials there. On 29 July 206 he was sentenced to jail after being found guilty of theft and violation of Luxembourg's professional secrecy laws. He received 12 months sentence. We had the honor of representing Deltour at his trial.
 
Antoine Deltour embodies the extreme antagonism that exists in Europe: on the one side a popular movement of citizens with an ever increasing awareness of the need to protect whistleblowers and on the other a political-financial oligarchy who dig in their heels against any improvements to such protection of people it sees as its enemies.
 
As I pleaded during the trial, this divide is also found in the political sphere. Deltour received the 2015 European Citizens’ prize and was recognized as a whistleblower by the European Parliament and by the special committee set up in the wake of his revelations. EU Commission President Jean-Claude Juncker stated that Deltour was not morally to blame and that he was not sure prosecuting him was a good choice.
 
And yet Deltour faced criminal proceedings in Luxembourg, with prosecutors seeking an 18 month sentence.
 
There is no doubt about Deltour’s selflessness, or about the importance of his revelations for the public interest and therefore for all European citizens. His had no personal interest in the publication of the information he revealed but merely acted on his moral convictions. In this sense he is like Edward Snowden, who is also defended by one of the authors.
  
But if his motivation is not acknowledged, and does not protect him from prosecution, it will dissuade other potential whistleblowers from going public. One should keep in mind that many other big European scandals were brought to light thanks to whistleblowers. Those who face legal consequences or damage to their reputations in the wake of such revelations use complex maneuvers and sophisticated secrecy to avoid any leaks. The need for whistleblower protection is all more pressing given the lengths people go to bury their actions in computers or through obscure accounting or outsource them to the other end of the world.
 
We pleaded for Antoine Deltour to be freed. If his case doesn’t fulfill the European Court of Human Rights’ criteria for whistleblower protection, whose does? There is no doubt that he acted in the public interest. Furthermore, publishing the revelations through the press was his only option. There was no internal mechanism at Pricewaterhouse Coopers that would have allowed him to engage in a secure and efficient dialogue. Internally he was told that the activities that worried him were not just legal but also an important source of prosperity.
 
No one could deny that the harm caused to Pricewaterhouse Coopers is null as compared to the public benefit of the revelations. This is especially true given that since the news broke, the company’s profits have actually grown.
 
But regardless of the present case, it is indisputable that the best protection of whistleblowers lies in protection from prosecution and not in post facto reparations. The EU and its member states should push for relevant laws, for instance by way of a directive.  This was the proposal from the EU Parliament’s TAXE committee and the Greens put forward a bill. But the protection offered by the directive on trade secrets adopted by the EU Parliament on 14 April 2016 is insufficient. The protection of whistleblowers should be extended to every configuration possible and not limited to the denunciation of illegal behavior. What Deltour revealed was not illegal in itself but was bluntly harmful to the public interest, to European taxpayers and to the already fragile European image.
 
French members of parliament have shown some imagination here, and even if their proposals on improving whistleblower protection are not perfect, they would be a step in the right direction. But the French senate has already expressed its hostility to whistleblowers, so we can be fairly sure that the bill will be stripped of its most effective mechanisms. Meanwhile, elsewhere in Europe lobbyists have been working hard to curb efforts by parliaments and citizens to better this protection.
 
Whistleblowers embody a vision of the world in which those who act against the public interest are brought to justice. They also embody the hope that victory is possible for those who fight the powers of cynicism and hyper-individualism. Effective protection of whistleblowers would be a first step in this direction.

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