Recital 31
Directive on the protection of persons who report breaches of Union law · UE 2019/1937
| (31) | Persons who report information about threats or harm to the public interest obtained in the context of their work-related activities make use of their right to freedom of expression. The right to freedom of expression and information, enshrined in Article 11 of the Charter and in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, encompasses the right to receive and impart information as well as the freedom and pluralism of the media. Accordingly, this Directive draws upon the case law of the European Court of Human Rights (ECHR) on the right to freedom of expression, and the principles developed on this basis by the Council of Europe in its Recommendation on the Protection of Whistleblowers adopted by its Committee of Ministers on 30 April 2014. |
In Luxembourg, the Halet v. Luxembourg judgment of the ECHR Grand Chamber of 14 February 2023 directly shaped the interpretation of the Luxembourg whistleblower's freedom of expression, by expanding the notion of public interest to disclosure of legal but socially contested tax optimization practices (LuxLeaks case). The law of 16 May 2023 integrates this high standard: the OFRS and Luxembourg labour courts apply the ECHR proportionality test reinforced by Halet, and any confidentiality or non-disparagement clause contradicting this right is deemed unwritten.
Luxgap practice: audit your confidentiality clauses, ethics codes and IT charters to eliminate any excessive restriction on employees' freedom of expression, under penalty of nullity and a negative signal during an OFRS or ITM inspection.
