Mitigated sentences in the LuxLeaks trial: suspended prison sentences after a guilty verdict

On 29 June 2016, the 12th chamber of the Criminal Court of Luxembourg found two former employees of PricewaterhouseCoopers (“PwC”), Antoine Deltour and Raphaël Halet, guilty of breaching secrecy laws by stealing 30,000 confidential tax files relating to some of the world’s corporations and the Luxembourg Administration. 

The two whistleblowers got suspended sentences of 12 and 9 months respectively and were fined €1,500 and €1,000 respectively. They were also ordered to pay a symbolic euro for damages to PwC, while Edouard Perrin, the French journalist from the TV programme “Cash Investigation” who reported the findings, was acquitted. Although they have been given lighter sentences than the 18-month jail terms (eventually suspended) requested by the prosecution, both Deltour and Halet have announced their intention to appeal the judgments.

While PwC and the prosecutor argued that Deltour and Halet should not be considered as whistleblowers since they had deliberately stolen these documents, the Tribunal, conversely, explicitly recognized such status. Indeed, it admitted that “it is still indisputable that Antoine Deltour’s disclosures and also those made by Raphaël Halet today are of general interest, having resulted in greater transparency and tax equity”.

Nevertheless, the Tribunal added: “However, it remains to be determined whether the whistleblower status will protect the accused at the national or European level or, if not, whether the Council of Europe and specifically the application of Article 10 of the European Convention on Human Rights and Fundamental Freedoms guarantee their protection”. In the absence of text providing such protection, the Luxembourg court has therefore sentenced the defendants to suspended prison terms.

The legal status of whistleblowers must thus be defined and European countries are examining this matter.

The day after the verdict, the French Supreme Court ruled that employees alleging suspicious behaviour within their company should be granted full immunity from being penalized by their employers when they denounce, in good faith, unlawful acts committed in the workplace (C. Cass. Soc. 30 June 2016, n°15-10.557).

Moreover, BaFin, the German “policeman” of stock markets, has announced the creation of a platform, accessible through BaFin’s website, for employees acting in the public interest. This platform should enable them to report suspicious behaviour without fear of having their identity revealed. 

In order to assure equal protection of whistleblowers within European countries, discussions in the European Parliament are due to take place in the forthcoming weeks.