THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

59. The applicant submitted that his criminal conviction amounted to a disproportionate interference with his right to freedom of expression as provided for by Article 10 of the Convention. [...]

D. The Court‘s assessment [...]

1. General principles established in the Court‘s case-law [...]

(a) General principles concerning the right to freedom of expression within professional relationships [...]

112. Protection of freedom of expression in the workplace thus constitutes a consistent and wellestablished approach in the case-law of the Court, which has gradually identified a requirement of special protection that, subject to certain conditions, ought to be available to civil servants or employees who, in breach of the rules applicable to them, disclose confidential information obtained in their workplace. Thus, a body of case-law has been developed which protects „whistle-blowers“, although the Court has not specifically used this terminology. In the Guja judgment (cited above), the Court identified for the first time the review criteria for assessing whether and to what extent an individual (in the given case, a public official) divulging confidential information obtained in his or her workplace could rely on the protection of Article 10 of the Convention. It also specified the circumstances in which the sanctions imposed in response to such disclosures could interfere with the right to freedom of expression and amount to a violation of Article 10 of the Convention. [...]

114. The six criteria identified by the Guja judgment are therefore as follows:

• whether or not alternative channels for the disclosure were available;

• the public interest in the disclosed information;

• the authenticity of the disclosed information;

• the detriment to the employer;

• whether the whistle-blower acted in good faith; and

• the severity of the sanction. [...]

(b) The Guja criteria and the procedure for applying them23

120. The Court, which attaches importance to the stability and foreseeability of its case-law in terms of legal certainty, has, since the Guja judgment, consistently applied the criteria enabling it to assess whether and, if so, to what extent, an individual who discloses confidential information obtained in the context of an employment relationship could rely on the protection of Article 10 of the Convention. Nonetheless, the Court is fully conscious of the developments which have occurred since the Guja judgment was adopted in 2008, whether in terms of the place now occupied by whistle-blowers in democratic societies and the leading role they are liable to play by bringing to light information that is in the public interest, or in terms of the development of the European and international legal framework for the protection of whistle-blowers (see paragraphs 54-58 above). In consequence, it considers it appropriate to grasp the opportunity afforded by the referral of the present case to the Grand Chamber to confirm and consolidate the principles established in its case-law with regard to the protection of whistle-blowers, by refining the criteria for their implementation in the light of the current European and international context.

(i) The channels used to make the disclosure

121. The first criterion concerns the reporting channel or channels used to raise the alert. On numerous occasions since the Guja judgment, the Court has had occasion to emphasise that priority should be given to internal reporting channels. Disclosure should be made in the first place, in so far as possible, to the person‘s superior or other competent authority or body. „It is only where this is clearly impracticable that the information could, as a last resort, be disclosed to the public“ (see Guja, cited above, § 73). The internal hierarchical channel is, in principle, the best means for reconciling employees‘ duty of loyalty with the public interest served by disclosure. Thus, the Court took the view that a whistle-blowing situation was not at issue where an applicant had failed to report the matter to his superiors despite being aware of the existence of internal channels for disclosure and had not provided convincing explanations on this point (see Bathellier v. France [dec.], no. 49001/07, 12 October 2010, and Stanciulescu v. Romania [no. 2] [dec.], no. 14621/06, 22 November 2011).

122. However, this order of priority between internal and external reporting channels is not absolute in the Court‘s case-law. Such internal reporting mechanisms have to exist, and they must function properly (see Heinisch, cited above, § 73). The Court has accepted that certain circumstances may justify the direct use of „external reporting“. This is the case, in particular, where the internal reporting channel is unreliable or ineffective (see Guja, cited above, §§ 82-83, and Heinisch, cited above, § 74), where the whistle-blower is likely to be exposed to retaliation or where the information that he or she wishes to disclose pertains to the very essence of the activity of the employer concerned.

123. The Court also notes that in Gawlik (cited above, § 82), it left open the question whether or not the applicant was obliged to make use in the first instance of all the internal reporting channels, referring in that regard to the guiding principles in the Appendix to Recommendation (2014)7 (see paragraph 57 above), which do not establish an order of priority between the different channels of reporting and disclosure. In this connection, the Court refers to the wording of the Recommendation, to the effect that „the individual circumstances of each case will determine the most appropriate channel“ (see paragraph 57 above) and points out that the criterion relating to the reporting channel must be assessed in the light of the circumstances of each case. [...]

(iv) The public interest in the disclosed information

[...]

132. In accordance with the Court‘s case-law, in the general context of cases involving the right to freedom of expression and information, the public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. [...] However, the public interest cannot be reduced to the public‘s thirst for information about the private life of others, or to the reader‘s wish for sensationalism or even voyeurism (see Couderc and Hachette Filipacchi Associés, cited above, § 101).

133. In the specific context of cases concerning the protection of whistle-blowers, in which the disclosure by an employee, in breach of the applicable rules, of confidential information obtained in the workplace is in issue, the Court focuses on establishing whether the disclosed information is in the „public interest“ (see Guja, cited above, § 74). In this connection, the Court reiterates that the concept of public interest is to be assessed in the light of both the content of the disclosed information and the principle of its disclosure. As its case-law currently stands, the range of information of public interest that may fall within the scope of whistle-blowing is defined in a broad manner. [...]

137. As is thus clear from the Court‘s case-law, the range of information of public interest which may justify whistle-blowing that is covered by Article 10 includes the reporting by an employee of unlawful acts, practices or conduct in the workplace, or of acts, practices or conduct which, although legal, are reprehensible (see the case-law references cited in paragraphs 133-135 above).

138. In the Court‘s view, this could also apply, as appropriate, to certain information that concerns the functioning of public authorities in a democratic society and sparks a public debate, giving rise to controversy likely to create a legitimate interest on the public‘s part in having knowledge of the information in order to reach an informed opinion as to whether or not it reveals harm to the public interest. [...] 24

140. Indeed, the Court deems it useful to note that the weight of the public interest in the disclosed information will vary depending on the situations encountered. In this connection, the Court considers that, in the context of whistle-blowing, the public interest in disclosure of confidential information will decrease depending on whether the information disclosed relates to unlawful acts or practices, to reprehensible acts, practices or conduct or to a matter that sparks a debate giving rise to controversy as to whether or not there is harm to the public interest (see paragraphs 137- 138 above).

141. In the Court‘s view, information concerning unlawful acts or practices is undeniably of particularly strong public interest (see, for example, Gawlik, cited above, § 73, regarding the considerable public interest in information whose disclosure had been intended to prevent the repetition of potential offences). Information concerning acts, practices or conduct which, while not unlawful in themselves, are nonetheless reprehensible or controversial may also be particularly important (see, for example, Heinisch, cited above, § 71, regarding the vital importance of information concerning shortcomings in the care provided to vulnerable persons, disclosure of which had been intended to prevent abuse in the health sector)

142. That being so, although information capable of being considered of public interest concerns, in principle, public authorities or public bodies, it cannot be ruled out that it may also, in certain cases, concern the conduct of private parties, such as companies, who also inevitably and knowingly lay hemselves open to close scrutiny of their acts. [...]

143. Moreover, the Court would emphasise that the public interest in information cannot be assessed only on a national scale. Some types of information may be of public interest at a supranational – European or international – level, or for other States and their citizens. [...]

(v) The detriment caused

145. Under the Court‘s existing case-law, the detriment to the employer represents the interest which must be weighed up against the public interest in the disclosed information. [...]

147. The Court reiterates that the criterion of detriment to the employer was initially developed with regard to public authorities or State-owned companies: the damage in question, like the interest in the disclosure of information, was then public in nature. [...] Nonetheless, the Court considers it useful to add that it does not exclude the possibility that such disclosures could also give rise to other detrimental consequences, by affecting, at one and the same time, public interests, such as, in particular, the wider economic good (see Steel and Morris, cited above, § 94), the protection of property, the preservation of a protected secret such as confidentiality in tax matters or professional secrecy (see Fressoz and Roire, cited above, § 53, and, mutatis mutandis, Stoll, cited above, § 115), or citizens‘ confidence in the fairness and justice of States‘ fiscal policies.

148. In those circumstances, the Court considers it necessary to fine-tune the terms of the balancing exercise to be conducted between the competing interests at stake: over and above the sole detriment to the employer, it is the detrimental effects, taken as a whole, that the disclosure in issue is likely to entail which should be taken into account in assessing the proportionality of the interference with the right to freedom of expression of whistleblowers who are protected by Article 10 of the Convention.

(vi) The severity of the sanction

149. The Court notes at the outset that sanctions against whistle-blowers may take different forms, whether professional, disciplinary or criminal. In this regard, it has already had occasion to recognise that an applicant‘s removal or dismissal without notice constituted the heaviest sanction possible under labour law (see Gawlik, cited above, § 84, and the case-law references therein). It has also emphasised that a sanction of this type not only had negative repercussions on the applicant‘s career but could also have a chilling effect on other employees and discourage them from reporting any improper conduct, a chilling effect which was amplified in view of the widespread media coverage which certain cases could attract (see Guja, cited above, § 95, and Heinisch, cited above, § 91). It has also pointed out that this chilling effect works to the detriment of society as a whole (see Heinisch, cited above, § 91).

150. This observation also holds true with regard to the imposition of criminal penalties. The Court has frequently emphasised, in the general context of cases concerning Article 10 of the Convention, that the imposition of a criminal penalty is one of the most serious forms of interference with the right to freedom of expression. [...]

2. Application of these principles in the present case

(a) Preliminary considerations

155. The present case concerns the disclosure by the applicant, while he was employed by a private company, of confidential documents protected by professional secrecy, comprising fourteen tax returns from multinational companies and two covering letters, obtained from his workplace (see paragraphs 14 and 23 above). In particular, it is characterised by the following features: on the one hand, the fact that the applicant‘s employer was a private entity, and, on the other, the fact that a statutory obligation to observe professional secrecy existed over and above the duty of loyalty which usually governs employee-employer working relationships; and, lastly, the fact that a third party had already made revelations concerning the activities of the same employer prior to the impugned disclosures. Despite its specific context, the case raises similar issues to those already examined by the Court (see, in particular, paragraphs 113-117 and 121-151 above). In those circumstances, the Grand Chamber considers that it is appropriate to apply in the present case the general criteria and principles as reaffirmed and clarified above (see paragraphs 111-154 above). [...] 25

(b) The Court of Appeal‘s assessment of the facts

[...]

159. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law in a manner that gives full effect to the Convention. Its role is ultimately to determine whether the way in which that law is interpreted and applied produces consequences that are consistent with the principles of the Convention. [...]

170. In this regard, the applicant criticised the Court of Appeal for having applied these criteria in isolation (see paragraph 65 above). For its part, the Court considers it useful to point out that in cases involving the freedom of expression of whistle-blowers, it verifies compliance with the various „Guja criteria“, taken separately, without establishing a hierarchy between them or indicating the order in which they are to be examined. It appears that this order has varied from one case to another, without this fact having had an impact on the outcome of the case brought before it (compare, for example, the order in which the criteria are examined in the cases of Bucur and Toma, §§ 95-119; Heinisch, §§ 71-92; and Gawlik, §§ 73-84, all cited above). The Court stresses, however, that in view of their interdependence (see paragraphs 126 and 129 above), it is after undertaking a global analysis of all these criteria that it rules on the proportionality of an interference. This being so, the Court decides, in the present case, to review them successively in the light of the specific circumstances of the case and having regard to the Court of Appeal‘s assessment.

(α) Whether other channels existed to make the disclosure

171. The Court considers that the tax-optimisation practices for the benefit of large multinational companies and the tax returns – legal acts providing information (see paragraph 28 above) – prepared by the applicant‘s employer for the Luxembourg tax authorities on behalf of its clients, were legal in Luxembourg. There was therefore nothing wrongful about them, within the meaning of the law, which would have justified an attempt by the applicant to alert his hierarchy in order to put an end to activities constituting his employer‘s normal activity.

172. The Court considers that, in such a situation, only direct recourse to an external reporting channel is likely to be an effective means of alert. As the MLA has argued, in certain circumstances, the use of the media may be a condition for effective whistle-blowing (see paragraph 97 above). In those circumstances, where conduct or practices relating to an employer‘s normal activities are involved and these are not, in themselves, illegal, effective respect for the right to impart information of public interest implies that direct use of an external reporting channel, including, where necessary, the media, should be considered acceptable. [...]

(β) The authenticity of the disclosed information 173. The applicant handed over to the journalist E.P. fourteen tax returns and two covering letters, „the accuracy and authenticity“ of which had been

confirmed by the Court of Appeal and are not called into question in any way (see paragraph 33 above). As the criterion of the authenticity of the disclosed information has thus also been met, there are no grounds for the Court to depart from the Court of Appeal‘s findings on this point.

(γ) The applicant‘s good faith

174. It appears from the Court of Appeal‘s judgment that the applicant did not act „for profit or in order to harm his employer“ (see paragraph 28 above) and it accepted that the criterion of good faith had been met (see paragraph 37 above). The Court does not discern any reason to depart from that assessment and notes in its turn that the applicant met the good-faith requirement at the time of making the disclosures in question.

(d) The balancing of the public interest in the disclosed information and the detrimental effects of the disclosure [...]

179. With this in view, the Court will examine in turn the context in which the impugned disclosure occurred, the public interest served by it and the harmful effects to which it gave rise.

– The context of the impugned disclosure [...]

184. In this connection, the Court reaffirms that a public debate may be of an ongoing nature and draw on additional information (see Dammann, cited above, § 54, and Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 27, 26 April 2007). Revelations concerning current events or pre-existing debates may also serve the general interest (see Couderc and Hachette Filipacchi Associé, cited above, § 114). Indeed, public debates are not frozen in time and, as submitted by the MLA, „citizens‘ attitudes to issues of general interest evolve over time“ (see paragraph 98 above). Accordingly, in the Court‘s view, the sole fact that a public debate on tax practices in Luxembourg was already underway when the applicant disclosed the impugned information cannot in itself rule out the possibility that this information might also be of public interest, in view of this debate, which had given rise to controversy as to corporate tax practices in Europe and particularly in France (see paragraphs 186 to 191 below), and the public‘s legitimate interest in being apprised of them. [...]

– The public interest of the disclosed information

[...]

187. In this respect, the Court emphasises that the purpose of whistle-blowing is not only to uncover and draw attention to information of public interest, but also to bring about change in the situation to which that information relates, where appropriate, by securing remedial action by the competent public authorities or the private persons concerned, such as companies. However, as the MLA submitted (see paragraph 97 above), it is sometimes necessary for the alarm to be raised several times on the same subject before complaints are effectively dealt with by the public authorities, or in order to mobilise society as a whole and enable it to exercise increased vigilance. Accordingly, in the Court‘s opinion, the fact that a debate on the practices of tax avoidance and tax optimisation 26 practices in Luxembourg was already in progress when the impugned documents were disclosed cannot suffice to reduce the relevance of these documents. [...]

– The detrimental effects [...]

193. In response to the applicant‘s submission inviting it to abandon the criterion of damage caused to the employer (see paragraph 73 above), the Court reaffirms that this criterion retains its relevance in the Court‘s examination of the proportionality or otherwise of a measure penalising disclosure, by a whistle-blower, of information of public interest. It is nonetheless appropriate to extend it, by taking into account, with regard to the other side of the scales, all of the detrimental effects arising from the impugned disclosure (see paragraph 148 above).

194. In this connection, it notes, firstly, that the Court of Appeal held that the applicant‘s employer (PwC) had been „associated with a practice of tax evasion, if not tax optimisation, ... described as unacceptable“, „[had] been the victim of criminal offences“ and „[had] necessarily suffered harm“ (see paragraph 35 above). In the Court‘s opinion, the damage sustained by the applicant‘s employer cannot be assessed only in respect of the possible financial impact of the impugned disclosure. Like the Chamber (see paragraph 100 of the Chamber judgment), the Grand Chamber accepts that PwC sustained some reputational damage, particularly among its clients, since the impugned disclosure could have raised questions about its ability to ensure the confidentiality of the financial data entrusted to it and the tax activities carried out on their behalf. The Court also notes, however, that no longer-term damage would appear to have been established (see paragraph 15 above).

195. Secondly, the Court considers it necessary to examine whether other interests were affected by the impugned disclosure (see paragraph 86 above). The fact that the disclosure concerns documents held by a private-sector employer does not necessarily rule out the possibility that other interests than those of that employer, including public interests, may have been affected by it, given that the Court‘s assessment must cover all of the detrimental effects arising from the impugned disclosure (see paragraphs 147-148 above). [...]

197. As to the public interest allegedly damaged by the revelation, the Court emphasises that in the present case it is not only the applicant‘s disclosure of information that is in issue, but also the fraudulent removal of the data carrier (see paragraph 27 above) and that, in this connection, the public interest in preventing and punishing theft must also be taken into consideration. Additionally, the Court points out that the applicant was not only bound by the duty of loyalty and discretion owed by any employee to his or her employer but also by the rule of professional secrecy which prevails in the specific field of the activities carried out by PwC, and to which he was legally bound in the exercise of his professional activities (see paragraph 29 above). The preservation of professional secrecy is undeniably in the public interest, in so far as its aim is to ensure the credibility of certain professions by fostering a relationship of trust between professionals and their clients. It is also a principle of public policy, breach of which may be punishable under criminal law. [...]

– The outcome of the balancing exercise

201. In the light of the above considerations, the Court finds that the balancing exercise undertaken by the domestic courts did not satisfy the requirements it has identified in the present case (see paragraphs 131-148 above). On the one hand, the Court of Appeal gave an overly restrictive interpretation of the public interest of the disclosed information (see paragraphs 32 and 35 above). At the same time, it failed to include the entirety of the detrimental effects arising from the disclosure in question on the other side of the scales, but focused solely on the harm sustained by PwC. In finding that this damage alone, the extent of which it did not assess in terms of that company‘s business or reputation, outweighed the public interest in the information disclosed, without having regard to the harm also caused to the private interests of PwC‘s customers and to the public interest in preventing and punishing theft and in respect for professional secrecy, the Court of Appeal thus failed to take sufficient account, as it was required to do, of the specific features of the present case.

202. In these circumstances, it is for the Court itself to undertake the balancing exercise of the interests involved. In this connection, it reiterates that it has acknowledged that the information disclosed by the applicant was undeniably of public interest (see paragraphs 191-192 above). At the same time, it cannot overlook the fact that the impugned disclosure was carried out through the theft of data and a breach of the professional secrecy by which the applicant was bound. That being so, it notes the relative weight of the disclosed information, having regard to its nature and the extent of the risk attached to its disclosure. In the light of its findings (see paragraphs 191-192 above) as to the importance, at both national and European level, of the public debate on the tax practices of multinational companies, to which the information disclosed by the applicant has made an essential contribution, the Court considers that the public interest in the disclosure of that information outweighs all of the detrimental effects. [...]

(c) Conclusion

206. The Court, after weighing up all the interests concerned and taken account of the nature, severity and chilling effect of the applicant‘s criminal conviction, concludes that the interference with his right to freedom of expression, in particular his freedom to impart information, was not „necessary in a democratic society“.

207. There has accordingly been a violation of Article 10 of the Convention.

Anm des Autors: Dem Urteil sind eine gemeinsame abweichende Meinung der Richter Ravarani, Chanturia, Sabato und der Richterin Mourou-Vikström sowie eine abweichende Meinung des Richters Kjølbro gem Art 45 Abs 2 EMRK, Art 74 Abs 2 der Verfahrensregeln des EGMR beigefügt. Eine deutsche Übersetzung der wichtigsten Passagen finden Sie in NZA 2023, 55.