CYIL vol. 15 (2024)

HARALD CHRISTIAN SCHEU considered it necessary to revise or at least modify some of the Guja criteria in the light of the conditions established by the Directive. It is therefore all the more astonishing that the Grand Chamber, after referring extensively to the EU Directive in the list of relevant national and international documents (Section II.B.3), did not mention the impact of the Directive at all in its decision. From the text of the judgment, it is unclear whether, for example, on the issue of harm to the employer, the Court supports the applicant’s argument or the position of the government. The Court also avoided the question of whether some of the Guja criteria should be revised under the Directive. Indeed, the Grand Chamber used the occasion of the Halet case to formulate concrete guidelines for the application of the Guja criteria, but without a single reference to the Directive. One could try to read between the lines and establish a link between the Directive and the Court’s considerations on the priority of internal over external reporting channels. The Grand Chamber in Halet clearly states that “this order of priority between internal and external reporting channels is not absolute” and that the respective internal reporting mechanisms “have to exist, and they must function properly”. 39 Perhaps this statement could be seen as a certain concession to EU whistleblower law. But it is no more than a small step, because in most cases where the Directive has led to the establishment of effective internal reporting mechanisms, the whistleblower will have to use them first, according to the Guja model, before moving on to external reporting. In Halet , the Grand Chamber makes no concession on the good faith criterion, explicitly stating that the good faith of the claimant must be assessed “in each case brought before the Court”. In the proceedings it must be determined whether the whistleblower “was motivated by a desire for personal advantage, held any personal grievance against his or her employer, or whether there was any other ulterior motive for the relevant actions”. 40 On one point, the court now deviates even further from the Directive. The material scope of protection under the Court’s case law, covering not only reporting of unlawful conduct but also immoral conduct, was already significantly broader than that of the Directive. In Halet , the Grand Chamber clarified that the protection extends not only to “information concerning acts, practices or conduct which, while not unlawful in themselves, are nonetheless reprehensible or controversial” but also to 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. 41 This extension, by the way, was criticized by some of the dissenting judges. 42

39 Halet v. Luxembourg (GC), paras. 121–122. 40 Halet v. Luxembourg (GC), para. 128. 41 Halet v. Luxembourg (GC). para. 140.

42 See the joint dissenting opinion of Judges Ravarani, Mourou-Vikström, Chanturia and Sabato and the statement of dissent by Judge Kjølbro. It should however be noted that none of the dissenting judges referred to the different standard of the Directive.

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