CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 14 février 2023

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margin-bottom:0pt } .s92386F3A { width:34.88pt; font-family:Arial; display:inline-block } .s8D4378C7 { width:153.76pt; font-family:Arial; display:inline-block } .sF993D337 { width:25.88pt; font-family:Arial; display:inline-block } .sF78227B2 { width:156.43pt; font-family:Arial; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt } .fixListIndent { list-style-position: inside }   GRAND CHAMBER CASE OF HALET v. LUXEMBOURG (Application no. 21884/18)   JUDGMENT   Art 10 • Freedom of expression • Criminal-law fine of EUR 1,000 for disclosure to media of confidential documents from private-sector employer concerning tax practices of multinational companies (LuxLeaks) • Consolidation of European Court’s previous case-law on protection of whistle-blowers and fine-tuning of criteria established in Guja v. Moldova [GC] • No abstract and general definition of concept of whistle-blower • Claim for protection under whistle-blower status to be granted depending on circumstances and context of each case • Overall assessment by the Court of Guja criteria, taken separately, but without hierarchy or specific order • Channel selected for disclosure acceptable in absence of illegal conduct by employer • Authenticity of disclosed documents • Applicant’s good faith • Necessary balancing of competing interests at stake by Grand Chamber, as domestic courts’ balancing exercise did not satisfy requirements identified in present judgment • Overly restrictive interpretation of public interest of disclosed information, which had made essential contribution to pre-existing debate of national and European importance • Detriment sustained by employer alone taken into account by domestic courts • Public interest in disclosure outweighed all detrimental effects, including theft of data, breach of professional secrecy and harm to private interests of employer’s customers • Disproportionate nature of criminal conviction   STRASBOURG 14 February 2023   This judgment is final but it may be subject to editorial revision. TABLE OF CONTENTS PROCEDURE THE FACTS I.   THE CIRCUMSTANCES OF THE CASE A.   The factual background to the case B.   The criminal proceedings brought in the case 1.   The first-instance judgment 2.   The proceedings before the Court of Appeal (a)   The submissions of the Attorney General’s Department (b)   The Court of Appeal’s judgment 3.   The Court of Cassation’s judgments in respect of A.D. and the applicant, and the further proceedings in respect of A.D. (a)   The Court of Cassation’s judgment in respect of the applicant (b)   The Court of Cassation’s judgment in respect of A.D. (c)   The Court of Appeal’s remittal judgment with regard to A.D. II.   RELEVANT NATIONAL AND INTERNATIONAL LEGAL FRAMEWORK A.   Relevant domestic law B.   International and European law 1.   International materials 2.   Texts adopted by the Council of Europe 3.   The European Directive on the protection of persons who report breaches of European Union law THE LAW I.   ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A.   The Chamber judgment B.   The parties’ submissions 1.   The applicant’s submissions 2.   The Government’s submissions C.   Third-party submissions 1.   Maison des Lanceurs d’alerte (MLA) 2.   Media Defence 3.   Whistleblower Netzwerk E.V. (WBN) 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 (b)   The Guja criteria and the procedure for applying them (i)   The channels used to make the disclosure (ii)   The authenticity of the disclosed information (iii)   Good faith (iv)   The public interest in the disclosed information (v)   The detriment caused (vi)   The severity of the sanction 2.   Application of these principles in the present case (a)   Preliminary considerations (b)   The Court of Appeal’s assessment of the facts (i)   The subsidiary review carried out by the Court (ii)   The Court of Appeal’s acknowledgment of the direct effect of the Convention (iii)   The Court of Appeal’s implementation of the Guja criteria (α)   Whether other channels existed to make the disclosure (β)   The authenticity of the disclosed information (γ)   The applicant’s good faith (δ)   The balancing of the public interest in the disclosed information and the detrimental effects of the disclosure ‒ The context of the disclosure in issue ..................... ‒ The public interest of the disclosed information ........ ‒ The detrimental effects ........................................ ‒ The outcome of the balancing exercise .................... (ε)   The severity of the sanction (c)   Conclusion II.   APPLICATION OF ARTICLE 41 OF THE CONVENTION A.   Damage B.   Costs and expenses OPERATIVE PROVISIONS JOINT DISSENTING OPINION OF JUDGES RAVARANI, MOUROU-VIKSTRÖM, CHANTURIA AND SABATO STATEMENT OF DISSENT BY JUDGE KJØLBRO In the case of Halet v. Luxembourg, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President ,   Jon Fridrik Kjølbro,   Síofra O’Leary,   Georges Ravarani,   Yonko Grozev,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   Pauliine Koskelo,   Tim Eicke,   Péter Paczolay,   Lado Chanturia,   Ivana Jelić,   Arnfinn Bårdsen,   Raffaele Sabato,   Mattias Guyomar,   Ioannis Ktistakis,   Andreas Zünd, judges , and Abel Campos, Deputy Registrar , Having deliberated in private on 2 February and 5 October 2022, Delivers the following judgment, which was adopted on that last ‑ mentioned date: PROCEDURE 1.     The case originated in an 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. 2.     The applicant was represented by Mr C. Meyer, a lawyer practising in Strasbourg. The Luxembourg Government (“the Government”) were represented by Mr David Weis, Government Agent before the European Court of Human Rights. 3.     The applicant alleged that his criminal conviction, following his disclosure to a journalist of sixteen documents issued by his employer and subject to professional secrecy, had amounted to a disproportionate interference with his right to freedom of expression. 4.     On 27 November 2018 notice of this complaint was sent to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5.     The application was allocated to the Third Section of the Court (Rule   52 § 1). On 11 May 2021 a Chamber of that Section, composed of Paul Lemmens, Georgios A. Serghides, Georges Ravarani, María Elósegui, Darian Pavli, Anja Seibert-Fohr, Peeter Roosma, judges, and Milan Blaško, Section Registrar, declared the application admissible and delivered a judgment. On 21 June 2021 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 6 September 2021 the panel of the Grand Chamber granted that request. 6.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     The applicant and the Government each filed written observations (Rule   59 §   1). As the applicant is of French nationality, the French Government were invited, if they so wished, to submit written observations and/or take part in the hearing before the Grand Chamber (Rule 44 § 3(a)). The French Government did not avail themselves of their right to intervene. Third-party comments were also received from the non-governmental organisations the Maison des lanceurs d’alerte (MLA), Media Defence, and Whistleblower Netzwerk E.V. (WBN), which had been given leave by the President of the Grand Chamber to take part in the written proceedings (Article 36 § 2 of the Convention and Rule 44 §   3). The non-governmental organisations ARTICLE 19 and the Whistleblowing International Network, acting also on behalf of Transparency International, the European Federation of Journalists, the Tax Justice Network and Blueprint for Free Speech, were also granted leave to intervene as third parties in the written proceedings. Although invited to do so, they did not submit observations. 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 2 February 2022. There appeared before the Court: (a)     for the Government Mr   M. Thewes , barrister,   Principal Counsel , Mr   H. Rassafi-Guibal, lawyer,   Counsel , Ms   A. Jaouid, representative of the Ministry of Justice,   lawyer attached to the Department of Human Rights/Fundamental Rights, Secretariat General; (b)     for the applicant Mr   C. Meyer ,   Counsel , Ms   P. Ducoulombier,   Adviser .   The Court heard addresses by Mr Meyer, Mr Thewes and Mr   Rassafi ‑ Guibal, and also their replies to questions put by judges. THE FACTS I.         THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1976 and lives in Viviers (France). A.    The factual background to the case 10.     The applicant is a former employee of the company PricewaterhouseCoopers (PwC), which provides auditing, tax advice and management consultancy services. PwC’s activity consists, among other services, in drawing up tax returns for and on behalf of its clients, and in requesting advance tax rulings from the tax authorities. These rulings, which concern the application of tax legislation to future operations, are known as Advance Tax Agreements (hereinafter “ATAs”), “tax rulings” or “tax rescripts”. 11.     While employed by PwC, the applicant coordinated a five-person team; in his submission, his position had not been a minor one, but, on the contrary, involved tasks that were at the heart of PwC’s activity; this consisted in obtaining the best possible treatment for its clients from the Luxembourg tax authorities. The Government disputed this description of his position, arguing that at the relevant time the applicant had performed the tasks of an administrative employee, and that his duties consisted in gathering, centralising, scanning, saving and dispatching tax returns to the clients concerned. 12.     Between 2012 and 2014 several hundred ATAs and tax returns prepared by PwC were published in various media outlets. These publications draw attention to a practice of highly advantageous tax agreements, entered into over the period 2002 to 2012 between PwC, acting on behalf of multinational companies, and the Luxembourg tax authorities. 13.     An initial internal investigation by PwC established that on 13   October 2010, the day before he left the company 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 ATAs; in the summer of 2011 he had handed these over to a journalist, E.P., at the latter’s request. 14 .     A second internal investigation by PwC led to the applicant’s identification. Following the media revelations about some of the ATAs copied by A.D., the applicant had contacted E.P. in May 2012, offering to hand over other documents. This transfer, eventually agreed to by the journalist, took place between October and December 2012, and concerned sixteen documents, namely fourteen tax returns and two covering letters. Some of these documents were used by the journalist in a second television programme, “Cash Investigation”, broadcast on 10 June 2013, one year after the first programme on the same topic. 15 .     On 5 and 6 November 2014, the sixteen documents were posted online by an association of journalists known as the International Consortium of Investigative Journalists (ICIJ). Their publication was described by the ICIJ as “ Luxembourg Leaks ” (hereinafter “LuxLeaks”). It appears from press articles that the LuxLeaks affair led to “a difficult year” for PwC, but that, after that year, the company experienced an increased turnover which was accompanied by a significant expansion of its workforce. 16.     On 2 December 2014 the applicant and the company PwC entered into a settlement agreement, under which the latter limited its claims to a symbolic one   euro and was also granted authorisation to register a mortgage ( inscription hypothécaire ) of 10 million euros (EUR) on the applicant’s assets. It further provided for the applicant’s dismissal at the end of his sick leave. On 29   December 2014 the applicant was dismissed after a period of notice. B.    The criminal proceedings brought in the case 17.     Following a complaint by PwC, A.D., E.P. and the applicant were charged by an investigating judge and committed for trial before the Luxembourg District Court by the investigating court. 1.      The first-instance judgment 18.     On 29 June 2016 the Luxembourg District Court, sitting as a criminal court, 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, breach of commercial secrecy, breach of professional secrecy, and laundering and possession ( blanchiment-détention ). 19.     A.D. was sentenced to a twelve-month prison term, suspended in its entirety, and to a fine of EUR   1,500. The applicant was sentenced to a nine-month prison term, suspended in its entirety, and a fine of EUR   1,000. They were also ordered to pay a symbolic sum of one euro to PwC as civil ‑ law compensation in respect of non-pecuniary damage, the civil party having limited its claim to that amount. E.P. was acquitted, on the grounds that he had not participated, within the meaning of the law, as a co-perpetrator or accomplice in the breach of commercial secrecy or in the breach of professional secrecy. 2.      The proceedings before the Court of Appeal 20.     A.D. and the applicant lodged criminal-law and civil-law appeals against the first-instance judgment. The public prosecutor lodged a criminal-law appeal in respect of A.D., the applicant and E.P. (a)    The submissions of the Attorney General’s Department 21.     In his submissions on appeal of 7 December 2016, the Attorney General reviewed the facts of the case and drew attention to the applicable law. He stated that the applicant had removed sixteen documents, consisting in fourteen corporate tax returns, one covering letter for draft tax returns sent by the civil party (PwC) to the group A., and a notification letter sent by the civil party to the taxation authorities concerning the transformation of a limited company into a holding company, to which was attached the notarial deed certifying this change. 22 .     After referring to the factual elements in respect of each defendant, the Attorney General then examined the respective legal developments concerning the application to the case of domestic law and of Article 10 of the Convention, relied on by the three defendants as a ground of defence. In this connection, he noted that the Court’s case-law “undoubtedly grants protection to whistle-blowers against criminal proceedings” but pointed out that it made that protection subject to “a series of criteria, which the national courts are, of course, required to apply”. 23 .     In his closing arguments, the Attorney General sought the applicant’s acquittal on the charges of breaching commercial secrecy and laundering of computer fraud, and submitted that the charges against him with regard to theft from one’s employer, computer fraud, breach of professional secrecy and laundering of the proceeds of theft from one’s employer had been made out. He also requested that the wording of the applicant’s conviction for computer fraud be altered, so as to find that he had “fraudulently remained” in the data-processing system, and asked for the applicant’s sentence to be varied to a fine. The Attorney General’s submissions include the following points: “... (a)     The criterion of the public interest of the information ... Denunciation of the practice of tax optimisation by transnational companies raises an important issue in the context of discussions on the principle of equal treatment. Those discussions are relevant from the point of view of other taxpayers, whether individuals or businesses. They are also important in terms of public confidence in the State’s ability to safeguard this principle of equal treatment. Lastly, they concern the confidence of nationals of other European Union member States in the ability of their governments and of the EU institutions to safeguard this same principle within the Union. The question is also relevant from the standpoint of ensuring conditions for fair competition between transnational companies, on the one hand, and national companies, including small and medium-sized companies, on the other ... It is undeniable that the disclosures have given rise to a major international public debate. It is equally undeniable that the disclosures have had extensive political consequences, including a change to the related practice in Luxembourg; implementation of an exchange of ATAs within the European Union; a commission of inquiry in the European Parliament; proceedings brought by the European Commission   – essentially but not exclusively against Luxembourg – to ascertain whether certain ATA agreements amounted in part to State aid, prohibited by European Union law; as well as the opening of negotiations within the Organisation for Economic Co-operation and Development (OECD) to establish a uniform definition of tax bases. It cannot therefore be seriously disputed that the criticism which motivated the acts is a matter of public interest. This first criterion has therefore been complied with as regards both defendants. (b)     The criterion of the damage suffered ... (ii)     The case of Raphaël Halet ... – whether any real damage was occasioned: As regards the civil party: Damage was undeniably sustained in terms of harm to reputation, especially as this was the second ‘leak’ of documents covered by professional secrecy within a short period of time and was widely covered in the media, thus becoming common knowledge. Damage was undoubtedly also sustained in terms of a loss of confidence by current or potential clients in the civil party’s ability to guarantee respect for professional secrecy. ... As regards the clients: It exists in terms of non-pecuniary damage following the breach of professional secrecy. It undoubtedly also exists in terms of damage to their reputation, given the unfavourable media reports concerning these clients. ... –     Under domestic law, professional secrecy has a public aspect, so that the public interest in disclosure is set against a second public interest, and not merely against a private interest. ... –     With regard to the principle of proportionality, the number of documents handed over was 16, compared to the 500-plus documents transmitted by A.D. That being stated, the documents in question were covered by professional secrecy, and Halet handed them over without reservation or restriction ... ... Having regard to all these elements, and, in particular, to the [applicant’s] specific ‘duties and responsibilities’ as recipient of a professional secret, the limited relevance of the documents in themselves and their disclosure at a time when the question had already been amply illustrated as a result of the acts committed by D., the alternatives which the [applicant] had at his disposal to express himself on the subject without violating professional secrecy, the justification for this secrecy and the damage caused, even if the documents were in fact less secret than those disclosed by D., the balance of interests weighs against the public interest in the information. In the present case, this interest was further reduced in that the documents reproduced information that could have been found elsewhere, although that fact did not entitle Raphaël Halet to disclose it in breach of his duty of loyalty towards his employer and of his duty of professional secrecy. This criterion has not therefore been met by Raphaël Halet. ... Raphaël Halet also acted in good faith and in the public interest and handed over authentic documents. However, he did not respect the principle of subsidiarity with regard to the subject matter of the disclosure and, essentially on the same grounds, with regard to the damage caused and the ‘weighing up of interests’. He cannot therefore benefit from total protection with regard to the criteria in the Guja case-law [ Guja v. Moldova [GC], no. 14277/04, ECHR 2008]. The level of protection afforded to him is therefore lower, although he is not completely divested of protection under Article 10 of the Convention. With regard to the criterion of the proportionality of the sentence, regard is to be had to the circumstance that [the applicant] was dismissed by his employer after the facts were discovered. Thus, a penalty has in fact already been imposed on him. Having regard to those elements, it is appropriate to find that the charges against him have been made out, but it is proposed that he be sentenced only to a fine. ...”     The Court of Appeal’s judgment 24 .     In a judgment of 15 March 2017, the Court of Appeal of the Grand Duchy of Luxembourg set out the relevant facts as follows: “... During the programme ‘Cash Investigation’ of 11 May 2012 ... on the topic ‘Tax havens: the little secrets of big business’, the journalists referred to 47,000 pages of working documents from PwC, obtained from an anonymous source; they showed various images which appeared to be ATAs or confirmation letters ... These confidential requests concerning ‘tax rescripts’, on a PwC letterhead and approved by the tax authorities, were broadcast on screen and commented on by the speakers. The corporate structures set up by multinational companies for the purpose of tax optimisation, which had been approved by the Luxembourg Direct Tax Administration, were discussed. In total, 24   different PwC clients were mentioned or could be identified. ... On 10 June 2013 the television channel ... broadcast a new Cash Investigation programme, which included a report entitled ‘The tax-evasion scandal: Revelations on the billions we are missing’. Various tax documents prepared by PwC were shown on screen. These included an ATA which was known to be in the possession of the journalist E.P. since, as the internal investigation had shown, they were taken away by A.D., but also 4   tax returns, which were new documents that had been issued after the date of A.D.’s departure. On 5 and 6 November 2014 the International Consortium of Investigative Journalists (hereinafter the ICIJ) in collaboration with some forty media partners, posted on its website 28,000 pages of tax agreements drawn up between the auditing firm PricewaterhouseCoopers and the Luxembourg Direct Tax Administration, corresponding to 554   files, including 538 ATAs of multinational companies, previously removed fraudulently from PwC by A.D., and also 14 tax returns, a covering letter and a notification letter addressed to the Direct Tax Administration, which, as PwC discovered through an internal investigation, had been fraudulently removed by Raphaël David Halet. The ICIJ’s investigation and analysis of the documents shed light on the practice of ATAs for the period 2002 to 2010; in other words, highly advantageous tax agreements passed between the audit firm PwC on behalf of multinational companies and the Luxembourg Direct Tax Administration, permitting the inter-group transfer of income, resulting in an effective tax rate that was well below the legal tax rate. These last revelations finally – two years after the leak allegedly committed by A.D. and Raphaël David Halet – triggered the so-called LuxLeaks case. On 9 December 2014 a new wave of tax documents, particularly the tax returns of well-known multinationals, was published by the ICIJ, building on the first set of disclosures, and once again shedding light on the tax practices of some thirty multinational companies; these revelations were referred to as ‘LuxLeaks 2’. PwC lodged an additional complaint on 23 December 2014 regarding the theft of the 16 documents referred to above, including 14 tax returns, committed after A.D.’s departure and in respect of which a further internal investigation had identified Raphaël David Halet as the perpetrator. In the light of these facts, he was dismissed, with notice, by a letter dated 29 December 2014. ... Raphaël David Halet maintains that he copied the tax returns of 14 well-known multinational companies for the purpose of communicating them to the journalist E.P. and thus supporting him in his investigations and his disclosures in the media ... E.P. ... admits to having been contacted by Raphaël David Halet, who offered to pass on documents which would support his work and confirms that he advised [the applicant] to open an email account for the specific purpose of exchanging data. In this way, Raphaël David Halet allegedly sent him fourteen tax returns concerning internationally known multinational companies, some of which he used in the second programme ...” 25 .     With regard to the merits of the case, the Court of Appeal noted that A.D. and the applicant relied on Article 10 of the Convention, as interpreted by the Court, and requested, under that provision, that they be granted the status of “whistle-blower” and be acquitted. The Court of Appeal ruled on “whistle-blowers in Luxembourg law” as follows: “... The Court notes that neither of the two Luxemburgish texts which recognise whistle-blower status, namely Article L.271-1 of the Labour Code and section 38-12 of the Financial Sector Act (Law of 5 May 1993), provide either a definition of a ‘whistle-blower’ or specify the criteria for application of this status. ... these texts do not apply to the present case. ... Accordingly, the Convention, as interpreted by the European Court [and] incorporated into Luxembourg law, ... will apply to the present case, in particular Article   10, which recognises and guarantees freedom of expression. ... It follows from the provisions of Article 10 of the European Convention that everyone has the right to freedom of expression. ... This essential freedom, enshrined in a supranational text, cannot be invalidated by national rules. Thus, in the context of a debate on a matter of general interest concerning tax avoidance, tax exemptions and tax evasion, the whistle-blower’s freedom of expression may, where appropriate and subject to certain conditions, prevail and be relied on as a circumstance justifying a breach of national law. Whistle-blowing as a justification neutralises the unlawful nature of the breach of the law, necessarily committed by the fact of divulging, in good faith and in a proportionate and appropriate manner, information that is in the public interest. ...” 26.     With regard to the different charges, the Court of Appeal decided, for various reasons related to the domestic criminal law, that it was not necessary to find that the charges brought against A.D. and the applicant in respect of breach of commercial secrecy, or, in that connection, laundering and possession, or laundering and possession of the proceeds of computer-related fraud, had been made out. 27 .     It also considered, having regard solely to domestic criminal law, that 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 initial or continued access to a data-processing or automated transmission system, breach of professional secrecy and laundering of the proceeds of theft from one’s employer. It considered, contrary to the findings of the first-instance court, that E.P. was to be regarded as complicit in the applicant’s breach of professional secrecy, and in his laundering and possession of the proceeds of theft from one’s employer. The relevant extracts from the Court of Appeal’s judgment read as follows: “At the relevant time Raphaël David Halet performed the duties of an administrative agent, which mainly consisted of collecting tax returns and ATAs, centralising them with his team, scanning them and saving them to a high-security computer directory and, if necessary, sending the tax returns to the clients concerned. By virtue of his position, he was one of a limited number of people who had access to the ‘Tax Process’ directory, the data carrier in which certain of the tax returns were stored. ... Raphaël David Halet contacted the journalist E.P. on 21 May 2012, after the transmission of the Cash Investigation programme on 11 May 2012 ..., by sending an email from his private email address ... They met in person in Metz on 24 October 2012. On 26   October 2012 E.P. [had] asked the applicant to create a new email address, into which he would place the [relevant] photographs in the ‘Drafts’ folder, while communicating the address and password to E.P. by another means, thus enabling the journalist to retrieve them directly from the Gmail account. It appears from the investigation that the documents were sent between 26 October 2012 and mid-December 2012. The first-instance judges thus acted properly in holding that the removal of digital data occurred when they were attached to the drafts of the various emails, since it was at this point that they were transferred out of PwC’s possession, from the latter’s server to the email server, where they were accessible only to the persons who knew the password, that is, E.P. and Raphaël David Halet.” 28 .     As to the breach of commercial secrecy, the Court of Appeal concluded that this offence had not been established in the applicant’s case, on the basis of the following reasoning: “A tax return represents a legal act of information ... by which the taxpayer communicates to the Tax Authorities data which is used as a basis for taxation. Through this return, which is the real starting point of the taxation procedure, the taxpayer informs the tax authorities about its operations, any material facts and legal situations concerning it, information which is necessary in order to determine the amount of tax payable and to enable the authorities to carry out checks. The tax return also informs the authorities about the fiscal strategies adopted by the taxpayer and forms a genuine declaration of intent, in that it sets out requests for deductions and for the exercise of various taxation options provided for by law ... In communicating the fourteen tax returns of PwC clients and two letters, Raphaël David Halet did not disclose data that ought to be considered as commercial or manufacturing secrets pertaining to his employer within the meaning of Article 309 of the Criminal Code, since tax returns are simple unilateral statements, by the taxpayer, as to its financial situation and fiscal strategies. Equally, and like A.D., Raphaël David Halet did not act for profit or in order to harm his employer, but to support E.P. in his investigation into tax evasion and to inform the public.” 29 .     With regard to the breach of professional secrecy, the Court of Appeal ruled as follows: “As noted above ..., the secrecy of legally regulated professions, by reference to Article   458 of the Criminal Code, is a matter of public policy and the employer can therefore rely on it not only before employment tribunals, but also before any criminal court ... Established by a special law which regulates [the] profession, professional secrecy has a wider scope than the protection of the private life of a given individual and is intended to protect all individuals who may come into contact with this professional. This trust is essential for the proper functioning of the auditing and accounting profession and could not be fully guaranteed if the client’s direct correspondent were the only person subject to secrecy, while any other employee or the archivist handling all the documentation were not subject to secrecy. The obligation of secrecy, which is a matter of public policy, is general and extends to all of an auditor’s activities ... By imposing secrecy as a general rule on the persons who are in their employment and targeting the information entrusted to them as a whole, the legislature extended the obligation of secrecy to all the persons employed in such companies, whatever their professional rank and in respect of all of the company’s activities; the law does not distinguish on the basis of the type of task entrusted to the auditing company. As section 22 of the above-mentioned Law of 18 December 2009 refers without distinction to all information entrusted to the auditor’s firm, it necessarily includes documents created by the auditor, such as tax returns. ... It is therefore irrelevant that Raphaël David Halet fraudulently withdrew tax returns prepared by another department, in other words secrets that had not been entrusted to him personally, since secrecy was, as a general rule, necessary for the exercise of his employer’s activities. In this case, the disclosure took place through the communication of fourteen tax returns to E.P. between October 2012 and December 2012, and specifically at the point when Raphaël David Halet communicated the password of the email account to E.P. ... The judgment is therefore upheld on this point.” 30 .     The Court of Appeal also examined whether the offences committed, which were in principle to be regarded as proven, could be held to be justified under Article   10 of the Convention. With regard to E.P., it held that it was appropriate to recognise him as enjoying “the defence of responsible journalism”, derived, in the Court’s case-law, from Article 10 of the Convention. For this reason, it upheld E.P.’s full acquittal. 31 .     It assessed the situation of A.D. and the applicant in the light of the Court’s case-law on the protection of whistle-blowers (referring, in particular, to Guja , cited above). It reiterated that this case-law made protection of whistle-blowers subject to compliance with six conditions, which it then analysed, after stating that “the unlawfulness of the divulged conduct is not a criterion in deciding whether to grant the protective status of whistle-blower; in such cases, the member of staff who denounces a serious shortcoming may rely on the protection of the Convention”. 32.     Ruling with regard to these six criteria, the Court of Appeal considered, firstly, that the revelations complained of were in the public interest, 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 ATAs and tax fairness in general”. It further noted that, following the LuxLeaks disclosures, the European Commission had presented a package of measures against tax evasion and an action plan for fair and effective corporate taxation in the European Union. In this connection, the relevant parts of the judgment read as follows: “As regards the criterion of the public interest of the information ... The European Court considers as being of public interest or general interest very important matters in a democratic society which the public has a legitimate interest in being informed about and which fall within the scope of political debate, without the act, omission, practice, conduct or shortcoming necessarily constituting a criminal offence. As noted by the representative of the public prosecutor’s office, denunciation of the practice of tax optimisation by transnational companies raises an important issue in the context of the debate on compliance with the principle of equal treatment of taxpayers and on tax transparency. The revelations exposed distortions of competition ... between transnational companies benefiting from ATAs and small national companies which do not. These disclosures have been, and are still, widely covered in the European news media, and the European Commission has made the fight against fraud and tax evasion an absolute priority. In particular, following the LuxLeaks revelations, the Commission presented a package of measures against tax evasion and another package on tax transparency, as well as an action plan for fair and efficient corporate taxation in the European Union. On 18 March 2015 it put forward a proposal for an amending directive on the compulsory exchange of information in the tax field. On 8 December 2015, the Council [of the European Union] presented Directive (EU) 2015/2376 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation, henceforth to include advance tax rulings. Taking into account these elements, and the initiatives taken at national level by the Member States, at European level by various committees (the TAX Committee and the JURI Committee), and the investigations opened by the Commission into the tax treatment granted by Luxembourg to certain multinational companies (which has been qualified as State aid granting unjustified advantages to the beneficiary companies, it is an accepted fact that the disclosures have opened th