LU: LuxLeaks, the Sequel

by Annelies Vandendriessche
On 29 June 2016, the Correctional Tribunal of Luxembourg found Antoine Deltour and Raphaël Halet guilty of domestic theft, fraudulent access to a database, breach of professional secrecy, violation of trade secrets, and laundering and possession of illegally obtained material in the so-called LuxLeaks Trial. The trial concerned the large-scale leaking of confidential documents revealing tax deals concluded between large multinational companies and the Luxembourgish tax authorities. The journalist Edouard Perrin was acquitted. The Tribunal, though recognising Deltour and Halet as ‘whistleblowers’, referred to the lack of existing legislation at national and European level which would protect whistleblowing under the circumstances at hand.

On 29July 2016, the State Public Prosecutor filed a general appeal against the verdict, wishing thereby to avoid the fragmentation of the case through separate appeals by Deltour and Halet, and to allow the Court of Appeal to re-examine the case in its entirety, including the role of the journalist. The case will be heard before the Luxembourg Court of Appeal on 12, 19, and 21 December 2016.

Meanwhile, widespread concern for the case has not waned. An open letter of support addressed to Deltour and Halet by 108 of the 751 Members of the European Parliament (MEPs) on 8 September 2016, expressed their shock and anger at Deltour and Halet’s convictions in Luxembourg. The list of signatures is dominated by MEPs from the political left. These MEPs vowed to continue to push for the adoption of an EU Directive protecting whistleblowers, indicating also that such legislation indeed does not exist to this day. They submitted a draft ‘Whistleblower Directive’ to the Commission encouraging it to submit a proposal, since only the Commission has legislative initiative among the European institutions. They also expressed their hopes that the links between the Luxembourgish fiscal administration and large MNCs, which came to light during the case, will be investigated.

The Luxembourg Parliament (Chambre des Députés) indeed already investigated the matter. The Ministers of Finance and of Justice jointly responded on 28 July 2016 to the parliamentary question submitted by two peoples’ representatives for the political party déi Lénk. Their response stated that it is not for the Government to comment on declarations made during a trial to which it was a third party. It further asserts that no subcontracting of administrative tasks normally performed by the fiscal administration to consultancy firms, such as PwC, took place. These firms, for a limited period, submitted a pre-written letter of approval with government letterhead when requesting advanced tax rulings, such a letter however being devoid of legal value without the signature and stamp of the administration. Moreover, the administration quickly asked to abandon this practice.

The European Parliament Members’ letter of support, as well as the parliamentary question raised in the Chambre, indicate the politicisation of the LuxLeaks Trial. Yet, regardless of the large political concern it incites, it is now up to the Luxembourg Court of Appeal to judge the matter once more in its entirety.

Annelies Vandendriessche is a doctoral candidate at the Faculty of Law, Economics and Finance of the University of Luxembourg under the supervision of Prof. Dr. Mark D. Cole, Professor for Media and Telecommunication Law at the University of Luxembourg.