Luxleaks verdict against two whistle-blowers contradicts intention of legislators as trade secrets directive is misquoted
Statement by Jean-Marie Cavada, Sergio Cofferati, Laura Ferrara, Constance LeGrip and Julia Reda
Brussels, 1 July 2016
Members of the European Parliament involved in the drafting of the trade secrets directive, which was recently adopted by the EU institutions, have expressed their grave concern over the misinterpretation of the directive in the “luxleaks” ruling on 29 June 2016.
Indeed, the trade secrets directive was wrongly referred to in support of the argument that Antoine Deltour, despite the established general-interest character of his revelations, would not be covered by the exception to protect whistle-blowers in this Directive. Deltour was sentenced to a 12 months suspended prison sentence and an €1500 fine.
It is troubling that, disregarding the principle of non-retroactivity of the law, a court ruling would refer, against the defender, to a directive that was not in force at the time that the alleged crimes were committed, and that is still not in force now, as it has not yet been transposed into Luxembourgish law.
But Members of the European Parliament that have worked on the text of the trade secrets directive consider it necessary to point out the fact that a wrong version of the trade secrets directive was quoted in the ruling. The MEPs involved in the drafting of the directive specifically agreed the wording of the exception to protect whistle-blowers in a way that would include, in particular, cases like Antoine Deltour’s, by mentioning explicitly that the revelation of any “wrongdoing” or “misconduct”, besides any illegal activity, should be covered in the exception. The wording quoted in the ruling is not the one that was agreed upon in the final version of the directive.
For all these reasons, we consider that, in this case, the intention of the legislators has been misinterpreted in the ruling. The “luxleaks” case is a reminder that the exception for the protection of whistle-blowers in the trade secrets directive must be considered as a first step towards further initiatives to protect whistle-blowers across Europe.
To this end, discussions are ongoing in the European Parliament on the protection of whistle-blowers and there is an upcoming debate on the protection of whistle-blowers foreseen next 6th July in the plenary session in Strasbourg.
To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.