Two auditors from PricewaterhouseCoopers (PwC) leaked Perrin the secret practices, known as tax rulings, between the Luxembourg tax authority and large multinationals to evade huge amounts in taxes. More than 80 journalists from 26 countries collaborated in the journalistic investigation.
In the Luxleaks case, decisions have been made that have not been aimed at protecting whistleblowers and facilitators, can this kind of decisions discourage future behaviors in potential whistelblowers?
Yes, they can definitely discourage whistleblowers. But not only whistleblowers, they can also discourage reporters as well. That was precisely why I chose to go back to court and to attack PWC in order to avoid what was made by the auditing company when they went to one of my sources home and seize these computers in order to seize the correspondence between him and me. This was a clear breach of a source protection and yet when I went to court in order to have this breach of a sources protection it was not recognized. But not on that ground. The case was settled against my will because they said I had no interest to sue in court. They said “why are you suing now”, because it was after the case. So in fact the judgment was not on the breach itself but on the merits I had or had not to sue. So it was quite a pity to have this result.
But overall yet, if you look at the whole case either in Luxembourg or in France or now in the European Court of Human Rights in Strasburg (because one of the two sources, Raphael Halet, he sued Luxembourg in the European Court of Human Rights and he lost in the first instance so I think he's going to ask the courts to look at this case again but in front of the grand chamber so it's up to the courts to see whether or not they grants this a review at the grand chamber) it’s going to be an interesting case to because so far the European Court of Human Rights have reverse their Case Law on whistleblowers. So it’s a very important case. A bad one, but an important one. That’s why is ongoing.
The Luxleaks case is still open at the judicial level after 7 years. A long way for whistleblowers and facilitators like you, are they heroes or just ordinary people with a high level of personal and public ethics?
I think they are acting in the public interest. I mean for Deltour and Halet it was clear. And in other cases when it involves, let’s say Public Health, it’s in the public interest. So it's not only a matter of ethics or personal ethics but also a matter of citizens’ responsibility, as a whole.
Is the European Directive on the protection of whistleblowers sufficient to protect them? What should Member States take into account when transposing the Directive in national laws?
It’s interesting because right now it has not been transposed in France yet. So it seems like France is taking its time to do so, which is interesting because when they had to transpose the Trade Secrets Directive, that went far quicker than in this one. That shows the priorities too. This should be transposed at the maximum magnitude possible.
Because in France we had a law, that was in active before this Directive, that was protecting whistleblowers but it was very limited and it had very serious problems. Such as, in order to launch the alert you have to go first within internal channels which means most of the time you won't be able to do this, because if you are going to see your boss and tell him “What are you doing here? This is something that goes against the public interest”, you are going to get fired and nothing will happen. So this is a very important point: that you should be able to launch the alert by an external channel if possible, the press or something else.
Also what should be included in this transposition should be the fact that unions or moral persons, and not only physical persons, should be able to be designated as whistleblowers. Because sometimes individuals won’t do what a union will do in order to launch the alert so that should be something that should be considered too.
Do you think that the Directive will address the need for whistleblowers to have legal, financial and even psychological support?
It should be included, yes. I mean, in France it's always seen as not really polite to talk about money. You know, we don't want to be seen as giving incentives, Financial incentives, for people to launch alerts. At the minimum that should be some kind of other founds to compensate whistleblowers because they lose a lot financially. You lose your professional life, you have to retrain and change your career. Legal costs are a huge problem. For instance, I know that Antoine Deltour and Raphaël Halet had spent close to a hundred thousand Euros to defend themselves. We are talking about very serious money there, so that should be some Financial incentive and protection, for sure.
The last point I like to make is once the alert is launched it should be up to the institution or the company or the body that is responsible for what the whistleblowers are denouncing to show that they did not do what they are accused of. I mean, the burden of proof should be on them and not on the Whistleblower to prove his case. Of course he should leave evidence of what is denouncing, but then it should be up to the attacked institution to prove its good face and have the burden of prove.
Are journalists, as facilitators, sufficiently protected by this legal framework?
In the first place the existing laws should be respected, that’s a start. Personally that’s what did not happen, like the protection of sources. There are laws in France to protect this. In theory there were breached and nothing happened. To make it short, protection granted to reporters should be should be considered in the largest score possible. And respected. Because it's not a protection for the reporters in itself, it’s a protection for the public interest because if we're not able to protect sources then we're not able to do our job properly and then and then the public-at-large won't benefit from what we are transmitting.
Antifraud has an anonymous complaints mailbox where we provide an encryption system so that there is no traceability of the complainant, do you think this is a good solution to encourage reports of irregularities?
Yes, I was not saying that internal channels are not working. I was saying that they should be two open channels (internal and external). Because I don't think a lot of companies or institutions do have the system you are describing. So yes, I mean, making sure that you cannot track it back the information to the person is important but then the drawback of this system is that the information stays anonymous then you will have difficulties in order to make it stand.
That's why it's important, I mean depending on the case of course, in some cases it's going to be really important for the person that launched the alert to be seen and heard because it's function will add enormous weight to the information he delivers. For instance, if he has responsibilities in the field he is launching the alert he or she will be seen as somebody that not only has the information but has the capability to denounce it. I don’t know if I’m clear in what I’m saying but sometimes the function of the whistleblowers at their job is at least as important as the information is providing. The clearest example is with Snowden. The information Snowden revealed would have been nothing if it was not provided by someone who perfectly understood what he was delivering and who could give the perspective and the scope of what he was revealing.
Journalists are a group of risk. In some countries investigating has extreme consequences, as in the case of Daphne Caruana, the Maltese journalist killed for investigating corruption. Do you think that nowadays, within the European framework, you can investigate in safety?
I hope we can still do it, yeah. I mean what happened to Daphne Caruana was a close call for a lot of us because it was within the EU and she was not the only one. You have the Slovakian reporter and his wife that were killed, Jan it was his name. And that was shortly after. So far we are faced with illegal dangers but not physical ones, but I say so far because you never know.
The good thing is that working in cooperation with other reporters tend to decrease the risk because it spreads the responsibility of the publication to numerous countries and then there is less incentive for people to shoot one messenger when you have dozens. So that’s the idea. It’s like “Whack a mole” game: you can silence one but there are fifteen or twenty of them, which was not the case in Malta unfortunately. She was basically alone.
You are member of the International Consortium of Investigative Journalists. What does it mean to you to be part of a group like this?
That was my point. I mean, not only helps tremendously when you talk about investigation itself because you can share a lot of information and you can investigate in a wider and more precise way a complex issue whatever it is. That's one thing. And the other thing is, of course, collective protection because of what I described.
I should also point out that I’m presiding the organization known as “Forbidden Stories”, I don’t know if you heard about it. We published the Daphne Project, precisely on Daphne Caruana, and the idea is that if you want to kill or silence a reporter we will make sure that the investigation this reporter has started will continue. Not only will it continue, will be expanded by dozens of reporters and we are working on this. We did the Daphne Project and also we recently produced the Cartel Project about a Mexican journalist, because it's another place where it's extremely dangerous to lose his job.
So the idea is shall you want to silence one but you won’t be able to silence all. Not only will we keep on the investigation and expand it but we will give this investigation a far wider audience than it had at the beginning. We play on the Streisand Effect, you know, you want to kill a story you make it only bigger. I mean, it's small steps but I think the steps are in the right direction.
You have helped to uncover cases of irregularities and explain them to the public. Do you think that the effects of these reports have forced or are forcing political and social changes?
I think that was the case, yeah. Most of the time in the audience people say “it’s still going on what you did, it’s not really helpful” I don’t see it that way. Every time you move one step you don't come back. You can verify this with the way international legislation has changed in some of the fields we investigated. Because that was known, what we revealed, was known within small circles and the people who knew you, but the public at large did not. And once the public at large knew, then that forced them to make the changes that they knew were coming but they didn't want to enact. So slowly it’s getting better.
I mean, the exchange of information you have to remember that a decade ago there was hardly no tax information exchange at all between countries. This mean that if France wanted to know something about Switzerland they have to know already what they were looking for in order to ask it, because you could not say “give me all the information and I will sort it out”. That was completely forbidden and did not exist. And now we have automatic tax exchange. That's one example of something that was unheard of at the time and that nobody, especially the countries, known that could be affected by this. No countries wanted to do and now this is something that's in the mainstream and we are not going to go back the other way on this.
The International Consortium of Investigative Journalists published that Juncker himself had acknowledged his mistake when he failed to act in the LuxLeaks case. Do you believe that the Commission would have gone further if Junker had not been its president?
I don't know what to answer to this because that's supposition. Some people said that because of his implication in this, he had to do much more than a person that would not have been implicated, maybe. But you can say the contrary too. I don't want to suppose anything. The only thing that is certain is that before the Junker Commission, the previous commission had started to look at this issues because they knew it was something that was against the public interest at large in the Union, and then you got to do something. The issue was, since it’s a tax matter, you can only rule this taxes by the unanimity rule. So that was not something they would be able to achieve because it's like Ireland and the Netherlands and Luxembourg, of course, we would know.
So they devised the way in which they could attack these agreements through, not the tax channel, but through the illegal state aid angle. And for that, you don’t need the unanimous voting, just a majority. That was started in the previous Commission, and when Junker came the Competition Commissioner was Margrethe Vestager from Denmark. She took over and that's what she used in order to go after Amazon, in order to go after Apple, in order to go after different multinationals. That's “you are illegally aided by States in order to pay less taxes”, so it’s an illegal aid and therefore a breach of competition balance between the Union.
That was kind smart, it did not worked all the time because of course those are really complex tax investigations. If you look at the results, I mean, the summaries are hundreds of pages long, just the summaries. And, of course, the multinationals do have hordes of lawyers to defend themselves, so it’s really complex. But that was the only way that you could use this and that was during the Junker Commission. And for sure in those cases Junker could not be seen doing anything close to move against this, because he knew what would happen. For start, I mean, he was the one who signed the tax agreement with Amazon in 2003 so he perfectly knew what he was doing.
What would you say to whistleblowers or investigative journalists who may be seeing you after your experience?
Whatever happens, I know it might sound like pompous and easy to say so, but whatever the consequences are you should follow the story. That’s something you are there for and that’s your mission. If you don't want just quit and change your job. That's one thing, you have to pursue, pursue, and follow the lead. The other thing is to pay real attention the way you exchange with your sources and be really careful to the consequences that your investigation will have on them. You have to balance this, the story and the consequences.
