CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ WHISTLEBLOWER PROTECTION IN EUROPE BETWEEN GUJA AND THE 2019 EU … Luxembourg 36 was the ideal opportunity to (re)define Strasbourg’s approach to whistleblower protection. It undoubtedly has the potential to become the Court’s leading case in this area. Mr. Halet, an employee of one of the world’s largest auditing and tax consulting companies (PricewaterhouseCoopers), provided information to the media about a number of problematic advance tax rulings and tax returns prepared by the company between 2002 and 2012. Examining the circumstances of his 2016 criminal conviction, the Chamber of the ECtHR ruled in May 2021 that the national proceedings had been conducted in line with the standards of Article 10 ECHR. At this stage, the Whistleblower Directive did not play a role in the Chamber’s considerations. On the one hand, this is perhaps not very surprising as the deadline for transposition (December 2021) had not yet expired when the Chamber delivered its judgement. On the other hand, two dissenting judges of the Chamber explicitly called for a strengthened protection of whistleblowers in light of the new EU Directive, emphasizing among other things that the Directive does not make the protection of whistleblowers dependent on any considerations related to the damage caused to the employer. 37 This shows that the Directive was a topic of discussion but ultimately did not influence the Chamber’s argumentation. In the Grand Chamber’ judgment of 14 February 2023, the parties referred more frequently to the EU Directive. It was primarily the appellant who relied on the standards of protection established by EU law. He recommended that the Grand Chamber develop the Guja jurisprudence by abandoning the criterion of detriment to the employer, since the Directive does not establish a link between the protection of whistleblowers and the harm caused to the employer. According to the applicant, it would be desirable to “harmonize” the Guja standard with the Directive. 38 The respondent government disagreed with this interpretation, arguing that although the Directive does not formally make the protection of whistleblowers conditional on a prior assessment of harm, this aspect is nevertheless relevant in the light of the complex set of criteria established by the Directive. Referring to recital 33 of the Directive, the Government recalled that the interest of employers in managing their organizations must be balanced against the interest of the public in being protected from harm, in accordance with the criteria developed in the case law of the European Court of Human Rights. The EU Whistleblower Directive was also referred to in the third-party submission of the German NGO Whistleblower Netzwerk E.V. (WBN). WBN urged the Court to avoid bringing its jurisprudence into conflict with the Directive. After pointing out that, unlike the Court’s case law, the Directive does not impose a preferential use of internal reporting channels and does not presuppose the good faith of the whistleblower, WBN recalled the above-mentioned joint opinion to the Chamber’s judgment and stressed the importance of legal certainty in European whistleblower protection. In light of these arguments and references made by both parties to the proceedings and in a third-party intervention, one might well have expected the ECtHR to provide a consolidated interpretation of the concept of whistleblower protection, taking into account the new development at the EU level. The Court could at least have indicated whether it 36 ECtHR, Halet v. Luxembourg (Application no. 21884/18, Chamber Judgment of 11 May 2021 and Grand Chamber Judgment of 14 February 2023). 37 Joint Dissenting Opinion of Judges Paul Lemmens and Darian Pavli. 38 Halet v. Luxembourg (GC), para. 73.

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