CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 mai 2021

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font-size:6.67pt; vertical-align:super; color:#0069d6 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }   THIRD SECTION CASE OF HALET v. LUXEMBOURG (Application no. 21884/18)     JUDGMENT   Art 10 • Freedom of expression • Criminal fine of EUR 1,000 for disclosing to the media confidential documents from a private-sector employer (“ Luxleaks ”), of insufficient public interest to counterbalance the harm caused • A priori whistle-blower within the meaning of the Court’s case-law • Proportionality of the penalty • Fair balance struck between the competing interests through a detailed analysis by the domestic courts   STRASBOURG 11 May 2021     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 14/02/2023   This judgment may be subject to editorial revision.   In the case of Halet v. Luxembourg, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Georges Ravarani,   María Elósegui,   Darian Pavli,   Anja Seibert-Fohr,   Peeter Roosma, judges, and Milan Blaško, Section Registrar, Having regard to: the application (no.   21884/18) against the Grand Duchy of Luxembourg lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Raphaël Halet (“the applicant”) on 7 May 2018; the decision to give notice to the Luxembourg Government (“the Government”) of the complaint concerning Article 10 of the Convention and to declare inadmissible the remainder of the application; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments received from the association Maison des lanceurs d’alerte , which had been granted leave to intervene by the President of the Section to which the case was initially allocated, Noting that the French Government, invited, if they so wished, to submit written observations (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court) in view of the applicant’s nationality, had informed the Court that they did not intend to avail themselves of the right of intervention , Having deliberated in private on 30 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s criminal conviction in the context of the so-called Luxleaks case, in which the domestic courts rejected his argument that he had acted as a whistle-blower. He relies on Article 10 of the Convention. THE FACTS 2.     The applicant was born in 1976 and lives in Viviers. He was represented by Mr C. Meyer, a lawyer practising in Strasbourg. 3.     The Luxembourg Government (“the Government”) were represented successively represented by an ad hoc Agent, Mr   Christophe   Schiltz, Head of the Legal Department of the Secretariat General at the Ministry of Foreign Affairs, and subsequently by their Agent, Mr   David   Weis, of the Permanent Representation of Luxembourg to the Council of Europe.   THE BACKGROUND TO THE CASE 4.     The applicant was employed by the company PricewaterhouseCoopers (“PwC”), which provides auditing, tax advice and management consultancy services. PwC’s activity consists, in particular, in drawing up tax declarations in the name and on behalf of its customers, and in requesting advance tax rulings from the tax authorities. These rulings, which concern the application of fiscal law to future operations, are known as “Advance Tax Agreements” (“ATAs”), “tax rulings” or “tax rescripts”. They are referred to below as tax rescripts. 5.     The applicant submits that, while employed by PwC, he coordinated a five-person team and held a post which was not minor, but, on the contrary, was at the heart of PwC’s activity, which consisted in obtaining the best possible treatment for its clients from the Luxembourg tax authorities. This description is challenged by the Government which, relying on the findings that the trial court in the present case would reach, submit that, at the relevant time, the applicant carried out the tasks of an administrative employee, and that his duties consisted in gathering, centralising, scanning, saving and dispatching tax declarations to the clients concerned. 6.     Between 2012 and 2014 several hundred tax rescripts and tax declarations prepared by PwC were published in various media outlets. These publications draw attention to a practice, over the period from 2002 to 2012, of highly advantageous tax agreements, concluded between PwC on behalf of multinational companies and the Luxembourg tax authorities. 7.     An internal investigation by PwC established that on 13 October 2010, the day before he left PwC following his resignation, an auditor, A.D., had copied 45,000 pages of confidential documents, including 20,000   pages of tax documents, corresponding to 538   folders of tax rescripts. He had handed these over to a journalist, E.P., in the summer of 2011, at the latter’s request. 8 .     A second internal investigation by PwC led to the applicant’s identification. Following the media’s disclosures about certain of the tax rescripts copied by A.D., the applicant had contacted E.P. in May 2012, offering to hand over other documents. The journalist eventually agreed to this offer, and the sixteen documents, specifically fourteen tax declarations and two covering letters, were handed over between October and December 2012. Some of these documents were used by the journalist in a second television programme, Cash Investigation , broadcast on 10 June 2013, a year after the first broadcast. On 5 and 6 November 2014 the sixteen documents were also put online by an association of journalists known as the “International Consortium of Investigative Journalists” (“ICIJ”). Its authors described this publication as “ Luxleaks ”. It appears from press articles that the Luxleaks affair led to “a difficult year” for PwC, but that, once this period had passed, the company experienced a growth in turnover which was accompanied by a significant increase in its workforc e. the criminal proceedings brought in the case 9.     On a complaint by PwC, A.D., the applicant and E.P. were charged by an investigating judge and committed for trial before the Luxembourg District Court by the investigating court. The first-instance judgment 10.     On 29 June 2016 the Luxembourg District Court, ruling on major offences, convicted A.D. and the applicant of theft from one’s employer ( vol domestique ), fraudulent access to a system for the processing or automatic transmission of data, betrayal of commercial secrets, breach of professional confidence and laundering and possession ( blanchiment-détention ). 11.     A.D. was sentenced to a twelve-month prison term, suspended in its entirety, and to a fine of 1,500 euros (EUR). The applicant was sentenced to a nine-month prison term, suspended in its entirety, and a fine of EUR   1,000. In addition, they were ordered to pay a symbolic sum of one euro to PwC as civil-law compensation in respect of non-pecuniary damage, PwC having limited its claim as the civil party to that amount. 12.     E.P. was acquitted, on the grounds that he had not taken part, for the purposes of the law, as a co-perpetrator or accomplice, in the applicant’s betrayal of commercial secrets or breach of professional confidence. Judgment of the Court of Appeal 13.     A.D. and the applicant lodged criminal-law and civil-law appeals against the above judgment. The public prosecutor lodged a criminal-law appeal against the same judgment in respect of the A.D., the applicant and E.P. 14.     On 15 March 2017 the Court of Appeal of the Grand Duchy of Luxembourg delivered its judgment. 15 .     Before analysing the merits of the case, the Court of Appeal noted that “[the applicant’s] public accusations, through communication of the tax declarations [of multinational companies], [were] related to the practice, initially criticised by [A.D.], of issuing tax rescripts that [were] advantageous to these multinational companies”. In the same context, it also stated that “under the case-law of the European Court of Human Rights, the lawfulness or illegality of the disclosed act or conduct is not a criterion in decided whether to grant whistle-blower status, since the disclosed information might even concern a particular shortcoming or questionable practices ...”. 16.     As to the merits, the Court of Appeal decided, for various reasons related to the domestic criminal law, not to examine certain charges brought against A.D. or the applicant, namely breaching commercial secrecy, or, accordingly, laundering and possession, or laundering and possession of the proceeds of computer-related fraud. 17.     It ruled that, in the light of the domestic criminal law alone, the first-instance court had been correct in finding that A.D. and the applicant had committed the offences of theft from one’s employer, fraudulent or retained access to a data processing or automatic transmission system, breach of professional confidence and laundering and possession of the proceeds of theft from one’s employer. It held that, contrary to the findings of the first-instance court, E.P. ought to have been regarded as complicit in the breach of professional confidence committed by the applicant, and in the laundering and possession of the proceeds of theft from one’s employer, also committed by him. 18 .     The Court of Appeal then examined whether or not these offences, which had been established and were in principle to be considered as proven, could be held to be justified under Article   10 of the Convention. It explained that under Luxembourg law the acceptance of whistle-blowing as a defence, derived from Article 10 of the Convention, had the effect of neutralising the illegal nature of the breach of the law. It specified that it was the statutory element of the offence – which was necessarily committed through the disclosure, in good faith and in a proportionate and appropriate manner, of information in the general interest – which was thus neutralised and led to the defendant’s acquittal. 19.     With regard to E.P., it held that he was to be recognised as enjoying the defence of having acted as a responsible journalist, derived by the Court from Article 10 of the Convention. In consequence, it confirmed, on this ground, E.P.’s full acquittal. 20.     With regard to A.D. and the applicant, it applied the Court’s case-law on the protection of whistle-blowers (referring, in particular, to Guja v. Moldova [GC], no. 14277/04, ECHR 2008). It reiterated that this case-law made protection of whistle-blowers subject to compliance with six conditions, which it then analysed. Its reasoning may be summarised as follows.   Analysis of the first four Guja criteria   21.     The Court of Appeal noted, in application of this case-law, that the revelations were in the public interest (the first criterion), in that they had “opened the way for a public debate in Europe and Luxembourg about the taxation ... of multinational companies, fiscal transparency, the practice of tax rescripts and tax fairness in general”. It added that, following the Luxleaks disclosures, the European Commission had presented a range of measures against tax evasion and an action plan for fair and effective corporate taxation in the European Union. 22.     The Court of Appeal also held that the information disclosed had been authentic (the second criterion). 23.     With regard to the third criterion, namely that disclosing the information to the public could only be considered, as a last resort, where it was clearly impracticable to do otherwise, the Court of Appeal considered that, having regard to the circumstances of the case, informing the public through the media had been “the only realistic alternative in order to raise the alert”. 24.     It accepted that the fourth criterion, that of good faith, had been met in the applicant’s case. In the case of A.D., it held that this criterion had been complied with in the summer of 2011, when he handed over the documents which he had taken in October 2010 to E.P. In contrast, it held that A.D. had not complied with this criterion when taking possession of the documents, given that he had not yet intended at that point to make them public.   Analysis of the fifth Guja criterion   25.     The Court of Appeal then analysed the criterion which required the public interest in obtaining the information to be balanced against the harm suffered by the employer as a result of the information revealed (the fifth criterion). 26 .     In so far as the applicant argued that PwC had not suffered any harm, pointing out that the company had even announced an increase in its turnover and number of employees, the Court of Appeal – after reviewing the Court’s various judgments in this area – noted as follows: “... the European Court does not analyse the harm sustained in specific terms, but considers that the harm caused to the employer may result from damage to its image, loss of confidence, and, in general, from the impact that the report may have had on the public. The higher the public profile of the case, and thus of the information that the employer wished to keep secret, the more the public’s confidence is shaken.” It also stated: “ There is accordingly no need to ascertain whether, as a result of [A.D.’s] and [the applicant’s] disclosures, PwC’s turnover has decreased or whether clients have complained, brought civil-liability proceedings or closed their accounts with PwC. The Court of Appeal notes that the fact of disclosing documents subject to business and professional secrecy has certainly caused harm to PwC, specifically non-pecuniary harm as a victim of criminal offences, resulting from the damage to its reputation and the loss of client confidence with regard to the security procedures in place in the company.” Furthermore, and more specifically in the context of the information provided concerning the applicant, it pointed out that: “In the present case, PwC has been associated with a practice of tax evasion, if not with a tax-optimisation procedure described as unacceptable. It has been the victim of criminal offences and has necessarily suffered harm”. 27.     It went on to weigh up the public interest, on the one hand, against PwC’s interests on the other, and found, with regard to A.D., that the public interest clearly outweighed any harm that may have been sustained by PwC and its clients. It therefore held that this criterion had been complied with in respect of A.D. 28 .     In contrast, in the applicant’s case, the Court of Appeal held that the disclosure of the documents had caused PwC harm that was greater than the general interest, with the result that the fifth criterion had not been fulfilled. It found that the defence argument that the applicant should be granted whistle-blower status could not be accepted, for the following reasons: “The documents handed over by [the applicant] to the journalist did not ... contribute to the public debate on the Luxembourg practice of [tax rescripts], trigger [a] debate on tax evasion or provide essential, new and previously unknown information.” 29.     In reaching this conclusion, it relied on the following arguments. 30 .     In contrast to the documents disclosed by A.D., the documents selected by the applicant were not administrative rulings and did not illustrate the application of the tax rescripts system. They were simple tax declarations – that is, unilateral statements by taxpayers concerning their financial situation – which did not permit the tax authorities’ attitude towards them to be ascertained. Thus, these documents did not reveal any information about the tax optimisation technique and were of limited relevance. 31.     Nor had they been selected by the applicant in order to provide additional information about the tax rescripts already in the possession of E.P., for example in order to illustrate how these tax rescripts were reflected in the [corresponding] tax declarations. They had been selected solely on the basis of how well-known the relevant taxpayer was. 32 .     When the applicant appropriated the documents and transmitted them to the journalist, the practice of tax rescripts had already been disclosed through the documents which were transmitted by A.D. and publicised on the occasion of the first Cash Investigation programme. The applicant had been aware of this circumstance. 33.     Thus, there had been no compelling reason for the applicant to commit a fresh violation of the law by appropriating and disclosing confidential documents. 34 .     The documents had been used by E.P. to prepare, as part of the second Cash Investigation programme, a section on tax evasion and the “billions we are missing”, rather than on the practice of tax rescripts. The documents were used to illustrate tax evasion by two groups of multinational companies, A. and A.M., explored in the report. According to E.P., in the case of company A. the tax declarations had allowed him to illustrate that the group had declared a significant turnover in Luxembourg without, however, engaging in the corresponding commercial activity in that country. The journalist criticised the following procedure with regard to company A.M. He reported that this group had transferred EUR 173   million to a subsidiary, governed by Luxembourg law, in order to repay the interest on a loan that it had granted to this subsidiary. The subsidiary was able to deduct the amount in question, which was then transferred to another company in the same group, located in Dubai, where it enjoyed full tax exemption. The Court of Appeal considered that the information in relation to the two groups of companies could admittedly be regarded as alarming and scandalous, but that it did not constitute essential or fundamentally new information. Thus, it concluded that the tax returns handed over by the applicant merely confirmed the result of the journalistic investigation carried out by E.P.’s team and that “as such, they were certainly useful to the journalist, but [did] not however provide any previously unknown cardinal information capable of relaunching or contributing to the debate on tax evasion”.   Analysis of the sixth Guja criterion   35.     With regard to the sixth criterion, concerning the proportionality of the penalty, the Court of Appeal made a distinction between the two defendants. It held that A.D., who was entitled to rely on the defence of whistle-blowing with regard to the offence of handing over the documents to the journalist E.P. in the summer of 2011, was to be absolved of any criticism with regard to those events, and thus acquitted of the offence of a breach of professional secrecy. With regard to those of his actions that were not covered by this defence, namely those concerning the appropriation of documents in October 2010, the Court of Appeal reduced the prison sentence to six months, suspended in its entirety, and upheld the fine of EUR 1,500. With regard to the applicant, the Court of Appeal held that there had been a plurality of offences, so that, under the domestic criminal law, the most severe penalty could be doubled, namely a prison term of between three months and five years, and a fine of EUR 251 to 5,000. Noting also that the applicant could not benefit from the defence of having acted as a whistle-blower, it decided nonetheless to have regard, as an extenuating circumstance, to “the motive, honourable in his view, which [had] driven him to act”, and to “the disinterested nature of his acts”. In consequence, it decided not to impose a prison term and to maintain the fine of EUR 1,000. 36.     The Court of Appeal upheld the civil-law judgment ordering A.D. and the applicant to pay the symbolic sum of one euro as compensation for the non-pecuniary damage sustained by PwC.   The Court of Cassation’s judgments in respect of A.D. and the applicant   37.     A.D. and the applicant appealed on points of law against the Court of Appeal’s judgment.   1. The Court of Cassation’s judgment in respect of the applicant   38.     In a judgment (no. 2/2018, Criminal Division) of 11 January 2018, the Court of Cassation dismissed the applicant’s appeal on points of law. 39 .     The applicant had submitted a legal argument alleging a violation by the Court of Appeal of Article 10 of the Convention, stating, inter alia : “The Court of Appeal has misrepresented the facts and the case-law of the European Court of Human Rights, and interpreted in a tendentious manner ‘the limited relevance of the documents’ handed over to [E.P.], leading it to find that the harm suffered by the employer was greater than the general interest and to reject the defence of whistle-blowing, given its conclusion that the criterion of the proportionality of the harm caused in relation to the general interest was not fulfilled.” In the “discussion of the argument”, the applicant had emphasised, by way of example, that the appendices to the tax returns filed by group A. (see paragraph 34 above) referred to annual general meetings which had an average duration of one minute, which sufficed to demonstrate a total lack of genuine substance in Luxembourg. He stressed that the tax returns that he had communicated made it possible to verify the economic reality of the entity set up in Luxembourg and thus to analyse the practice of using tax rescripts. 40.     In response to this argument, the Court of Cassation held, inter alia : “... Assessment of the facts which must underlie a decision as to whether a defendant can benefit from the defence of whistle-blower status falls within the sovereign domain of the judges invested with jurisdiction over the merits, and is not subject to review by the Court of Cassation, provided that this assessment is not deduced from reasons that are insufficient or contradictory; In the present case, the appellate courts based their assessment on the nature of the documents removed by [the applicant], the use of those documents in the context of a television programme on tax evasion, the statements made by [the applicant] and by [E.P.] concerning the relevance of the documents in question, and concluded that the tax returns removed [by the applicant], while they had undoubtedly been useful to the journalist [E.P.], did not however provide any cardinal information, hitherto unknown, that was capable of relaunching or contributing to the debate on tax evasion; Contrary [to the applicant’s argument], the factual findings reached by the appellate courts are not contradictory; ... The appellate courts’ assessment was thus based on reasons that were adequate and free from contradiction; ...”   2.     The Court of Cassation’s judgment in respect of A.D.   41.     In contrast, the appeal on points of law lodged by A.D. was granted by the Court of Cassation. 42.     In its judgment (no. 1/2018, Criminal Division) of 11 January 2018, it quashed the Court of Appeal’s judgment on the grounds that whistle-blower status ought in principle to be granted concerning all offences for which a person who had availed himself or herself of the right guaranteed by Article 10 of the Convention was prosecuted, failing which the protection that ought to arise from whistle-blower status would be rendered ineffective. The Court of Cassation thus held that the Court of Appeal had infringed Article   10 of the Convention by refusing to allow A.D. to rely on the defence of whistle-blowing regarding the appropriation of the documents handed over in October 2010, given that it had accepted this defence with regard to the handing over of these documents to the journalist E.P. in the summer of 2011.   D. The Court of Appeals’ remittal judgment with regard to A.D.   43.     In a judgment of 15 May 2018, the Court of Appeal held that, following the Court of Cassation’s judgment, A.D. ought to be acquitted, on the basis of Article 10 of the Convention, of all the offences committed with regard to the documents handed over to E.P. in the summer of 2011, including the offences related to the appropriation of these documents in October 2010. The Court of Appeal decided, however, that the first appellate judgment had become final, and thus remained valid in respect of A.D. concerning these same offences in so far as they related to the internal training documents that he had also appropriated in October 2010, when appropriating the tax documents that were subsequently transmitted to E.P. In this connection it limited itself to suspending the pronouncement of the sentence. 44.     This judgment was accepted by the parties, and consequently became final. RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW 45 .     The various offences with which the applicant was charged are provided for in the Criminal Code. 46.     Thus, the provisions on theft from one’s employer ( vol domestique ) read as follows: Article 461 § 1 “Anyone who fraudulently removes an object or an electronic key that does not belong to him or her shall be guilty of theft.” Article 463 “Thefts that are not specified in this Chapter shall be subject to a prison sentence of one month to five years and a fine of EUR 251 to 5,000.” Article 464 “A prison term of at least three months shall be imposed where the thief is an domestic servant [employee] or an individual providing his or her services in return for wages, even where the theft was committed against persons by whom he or she was not employed, but who were either in the employer’s house [premises] or in a house to which he or she was accompanying the employer, or, if [the thief] is a workman, journeyman or apprentice, in his or her employer’s house, workshop or shop, or a person usually working in the lodging where he or she committed the theft.” 47.     With regard to fraudulent retained access in an automated data processing system, Article 509-1 § 1 provides that: “Anyone who fraudulently accesses or retains access to all or part of an automated data processing or transmission system shall be subject to a prison term of between two months and two years and a fine of EUR 500 to 25,000, or to one of these two penalties.” 48.     The offence of a breach of professional secrecy is provided for in Article   458, which reads: “Doctors, surgeons, health officials, pharmacists, midwives and all other persons who through their status or profession are entrusted with secrets and who reveal them, shall be punished by imprisonment for a period of between eight days and six months and a fine of between EUR 500 and 5,000, except where they are called to testify in court and where the law obliges them to make these secrets known.” 49.     Laundering and possession of the proceeds of theft from one’s employer is provided for in Article 506-1, which refers to Article 32-1. Article 506-1, as in force at the relevant time, read as follows: “The following shall be punished by a prison term of between one and five years and a fine of EUR 1,250 to EUR 1,250,000, or by one of these penalties alone: (1) persons who knowingly facilitate, by any means, the provision of false explanations with regard to the nature, origins, location, availability, movement or ownership of the assets referred to in Article 32-1, sub-paragraph 1 (i), forming the object or the proceeds, direct or indirect: ... of a breach of Articles 463 and 464 of the Criminal Code ... or forming a pecuniary benefit based on one or several of these offences; ... (3) persons who have acquired, held in their possession or used the assets referred to in Article 32-1, sub-paragraph 1 (i), forming the object or the proceeds, direct or indirect, of the offences listed in point (i) of that Article or forming a pecuniary benefit of any kind based on one or several of these offences, where they knew, at the point when they received them, that they originated in one or several of the offences referred to in point (i) or from participation in one or several of these offences.” The above-mentioned “Article 32-1, sub-paragraph 1 (i)”, which has since been repealed (by a Law of 1 August 2018), provided as follows:   “In the event of the offence of laundering referred to in Articles 506-1 to 506-8 ... a special confiscation order shall be applied: (i) to property comprising property of every kind, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title to or interest in such property, property which is the object or direct or indirect proceeds of an offence or which constitutes any pecuniary benefit derived from the offence, including the income from such property ...” Furthermore, Article 506-4 supplements Article 506-1 and provides that: “The offences referred to in Article 506-1 shall also be punishable where the perpetrator is also the perpetrator or accomplice in the primary offence.” European Union law 50.     Directive (EU) 2016/943 on the protection of trade secrets was adopted on 8 June 2016. Under Article 6 of this Directive, the States are invited to include in their legislation “measures, procedures and remedies” in order to enable trade secret owners to prevent or obtain redress for “the unlawful acquisition, use and disclosure of trade secrets”. However, recital   20 of this Directive indicates that these measures, procedures and remedies “should not restrict whistleblowing activity”; it further specifies that “the protection of trade secrets should not extend to cases in which disclosure of a trade secret serves the public interest, insofar as directly relevant misconduct, wrongdoing or illegal activity is revealed. This should not be seen as preventing the competent judicial authorities from allowing an exception to the application of measures, procedures and remedies in a case where the respondent had every reason to believe in good faith that his or her conduct satisfied the appropriate criteria set out in this Directive”. 51 .     Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law was subsequently adopted on 23 October 2019. This Directive, which is intended to protect whistle-blowers who report breaches of European Union law in a range of areas, such as public procurement, financial services, prevention of money laundering or public health, is due to be transposed by the member States into their respective legal orders by 17   December 2021 at the latest. III.     INTERNATIONAL MATERIALS The United Nations 52.     In his report A/70/361 of 8 September 2015, David Kaye, the UN Special Rapporteur on the promotion and the protection of the right to freedom of opinion and expression, addressed the protection of sources of information and of whistle-blowers. 53.     In his opinion, the term “whistle-blower” refers to “a person who exposes information that he or she reasonably believes, at the time of disclosure, to be true and to constitute a threat or harm to a specified public interest, such as a violation of national or international law, abuse of authority, waste, fraud, or harm to the environment, public health or public safety”. D.   Kaye also specified that “[w]histle-blowing does not always involve specific individual wrongdoing, but it may uncover hidden information that the public has a legitimate interest in knowing”. 54.     On 24 January 2017 UN Secretary-General António   Guterres approved an updated UN whistle-blower protection policy, with the intention of “enhancing protection for individuals who report possible misconduct or cooperate with duly authorised audits or investigations”. The Council of Europe 55.     In the judgments in the cases of Heinisch v. Germany (no. 28274/08, §   37, ECHR 2011 (extracts)) and Bucur and Toma v. Romania (no.   40238/02, §   63, 8 January 2013), the Court summarised Resolution   1729 (2010) on the protection of “whistle-blowers”, adopted by the Parliamentary Assembly of the Council of Europe on 29 April 2010. 56.     Another instrument was adopted in this area by the Committee of Ministers of the Council of Europe on 30 April 2014. Certain relevant passages from that Recommendation (CM/Rec(2014)7) were set out in the case of Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no.   17224/11, § 44, 27 June 2017). This Recommendation considers that a “whistle-blower” is any person who “reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in the public or private sector”. 57.     On 23 June 2015 the Parliamentary Assembly of the Council of Europe adopted Resolution 2060(2015) and Recommendation 2073(2015) on “improving the protection of whistle-blowers”. In the first of these texts, the Parliamentary Assembly referred to the “disclosures concerning mass surveillance and intrusions of privacy carried out by the United States National Security Agency (NSA) and other intelligence agencies” and called for the adoption of a “binding legal instrument (convention) on whistle-blower protection on the basis of Committee of Ministers Recommendation CM/Rec(2014)7...”. In the second text, the Parliamentary Assembly invited the Committee of Ministers to “promote further improvements for the protection of whistle-blowers by launching the process of negotiating a binding legal instrument in the form of a framework convention that would be open to non-member States and cover disclosures of wrongdoings by persons employed in the field of national security and intelligence”. 58.     On 1   October 2019 the Parliamentary Assembly of the Council of Europe adopted Resolution 2300(2019) and Recommendation 2162(2019) on “Improving the protection of whistle-blowers all over Europe”. In the first of these documents, the Parliament Assembly strongly welcomed Directive (EU) 2019/1937 (see paragraph   51 above) and invited the member States of the Council of Europe which are also members of the European Union to adopt its provisions, adding that there was nothing to prevent them from protecting those reporting on breaches or abuses of their national law according to the same principles. As to the Council of Europe member States which are not members of the EU, the Parliamentary Assembly invited them to revise their relevant legislation in this area or pass new laws that draw on the proposal for a European directive in question. In the second text, the Parliamentary Assembly reiterated its invitation to the Committee of Ministers to begin preparations for negotiating a binding legal instrument in the form of a Council of Europe convention, which should draw on the above-mentioned European directive, taking due account of the clarifications and additions proposed in Resolution 2300 (2019). In its reply, adopted on 22 April 2020, the Committee of Minsters reiterated, with regard to the Assembly’s recommendation that a legally binding instrument be drawn up, the position set out in its reply to Assembly Recommendation 2073 (2015). It considered that “given the complexity of the subject and the range of solutions adopted by the member States to protect whistle-blowers, ... the negotiation of a binding instrument, such as a convention, would be time consuming and there would be no certainty as to its outcome”, and that it was “at this stage ... more appropriate to encourage States fully to implement the recommendations which have been adopted by the Committee of Ministers or other bodies   ...”. THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 59.     The applicant alleged that his conviction, following his disclosure to a journalist of sixteen documents emanating from his employer, PwC, had amounted to disproportionate interference with his right to freedom of expression. He relied on Article 10 of the Convention, which reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 60.     The Government raised an objection of inadmissibility, arguing that the application was manifestly ill-founded. They rejected the applicant’s claim that, among other points, the Court of Appeal had “ruled that it was possible to circumvent the Court’s case-law regarding violations of Article   10 [of the Convention]”, and had “merely pretended to weigh up the interests”. Referring to certain passages in the impugned judgment, the Government explained that the Court of Appeal had reiterated that it was obliged to give full effect to Convention and had then applied the Court’s case-law. They considered the applicant’s assertion to be manifestly erroneous and invited the Court to declare the application inadmissible in application of Article 35 § 3 (a) of the Convention. 61.     The applicant submitted in reply that, through this argument, the Government analysed in detail the weighing up of interests conducted by the domestic courts, a matter which went to the merits of the case. He added that the Government, while recognising the existence of interference with the right protected by Article 10 of the Convention (see paragraph 76 below), could not then contradict themselves by raising an objection arguing that the complaint - which, moreover, they recognised as being well-founded in part - was manifestly ill-founded. He therefore asked that the objection raised by the Government be joined to the merits of the case and then be rejected. 62.     The Court considers that the argument in question raises questions which require examination on the merits of the complaint under Article 10 of the Convention, rather than an examination of the admissibility of the complaint (see, mutatis mutandis, Gürbüz and Bayar v. Turkey , no.   8860/13, § 26, 23   July 2019). 63.     The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. The Court therefore declares it admissible.   Merits The parties’ submissions (a)    The applicant 64.     The applicant, who had indicated in his application that he was “at the origin of the Luxleaks   case”, took note of the Government’s acknowledgment that there had been an interference with his right to freedom of expression. 65.     He considered that the legal question centred on the proportionality of the interference. 66 .     He submitted, firstly, that the Government were “attempting to carry out ... an innocent and objective transformation” of the facts when asserting that the tax returns handed over by the applicant were “mere statements by the taxpayer”. The applicant submitted that these were, on the contrary, legal documents - drawn up and drafted by PwC on behalf of its clients and invoiced to them - which “demonstrate[d] the concrete existence of the tax arrangement contained in the tax rescript (the creation of Luxembourg and offshore companies, movement of capital inside groups, payment of dividends, etc.). He also made various allegations and criticisms with regard to the Court of Appeal’s judgment. In his submission, the Court of Appeal had held that “neither the Convention nor Luxembourg law provided for an exemption from criminal prosecution for whistle-blowers, ... with the result that Article 10 allowed only for a finding that prosecution was not necessary in a democratic society, without allowing the accused to be acquitted [“ relaxer ”, in Luxembourg law]”. By “holding that the public interest in learning the information handed over by [him] was weaker than the damage caused to [PwC]”, the Court of Appeal – and this finding had been endorsed by the Court of Cassation – had “denied him ... the protection of whistle-blower status”. Since the Court of Appeal had “judged that the compensation to be paid to the employer was ... a symbolic euro”, the balancing exercise “thus presupposed that the public interest in knowing the information in question was, in this case, less than one symbolic euro, that is, equal to zero. However, as the Court of Appeal had not claimed that the value of the information provided by the applicant was non-existent, it had “only pretended to balance the interests”. The domestic courts had “noted that there was indeed a defence ground in the present case which could have led to the applicant’s acquittal, but, having regard to the circumstances, they decided that the applicant ... could rely only on a lesser protection, that of an acknowledgement of extenuating circumstances’. 67.     There had been no objective reason to distinguish A.D.’s treatment from his, in that they had both been employees and had been equally linked to the document leaks which resulted in the Luxleaks scandals. The information reveal