Did Kimberley play double game, or did ‘snus’ bait Silvio Zammit to get at Dalli?

The OLAF investigation into the €60 million bribe solicited by Silvio Zammit, a former Nationalist councillor in Sliema and restaurateur, concluded that Gayle Kimberley - a Swedish Match lobbyist - was involved in the alleged bribe requests.

From the evidence collected, OLAF investigators ascertained that Kimberley was not telling the truth in details concerning the events under investigation, aside from contradictions in her statements on the contacts with Zammit, their content and intensity.

"Indications have been found that Ms Kimberley was involved in the alleged bribe requests expressed by Mr Silvio Zammit to both Swedish Match and ESTOC," OLAF said.

Specifically, OLAF said that, depending on the interpretation of the facts, "she might be responsible for bribery and/or trading in influence" - a startling revelation indicating that Kimberley, while acting as Swedish Match's lobbyist in Malta, was an accomplice to Zammit's bribe request in exchange for lifting the EU ban on snus.

A bribe request was made on 13 February 2012 to Swedish Match's Public Affairs Director Johann Gabrielsson - formerly a European Commission official who knew both Kimberley and her husband Matthew Kimberley when they were employed with the EU institutions - at Zammit's café Peppi's Kiosk in Sliema, in the presence of Gayle Kimberley.

Although Gabrielsson told Kimberley to inform Zammit that Swedish Match would not accept the €60 million offer and instructed her to cease contact with him, OLAF's investigation shows that Kimberley continued communicating with Zammit afterwards.

ESTOC email that connects Kimberley

The most damning evidence is an 8 March 2012 email that Zammit sent to ESTOC's secretary-general, Inge Delfosse, where he advertised a list of services he could offer the smokeless tobacco lobby to procure a meeting with Dalli.

After having had his €60 million offer turned down by Swedish Match, Zammit copied to ESTOC the exact proposal of lobbying services that Kimberley herself had sent to Swedish Match way back in November 2011 when she was first employed by Gabrielsson to set up the meeting with Dalli.

This was no coincidence: it turns out that Kimberley's husband Matthew, owner of the consultancy firm You Rock Ltd, had sent Zammit this proposal for consultancy services - a proposal which surely created some surprise for the Swedish Match directors in Brussels when they recognised the similarity.

In fact, in the 8 March email Zammit told ESTOC's Inge Delfosse that You Rock Ltd would be "the vehicle through which these services will be provided, a duly established Maltese company. Attached is the résumé of Dr Gayle Kimberley" - and it included the exact same bullet points of services Kimberley first sent to Gabrielsson on 17 November 2011 when she negotiated her fee.

Delfosse replied on 15 March, apologising to Zammit for not getting back to him sooner. But at this stage, Swedish Match's Patrik Hildingsson - who was based in Brussels as chairman of ESTOC - had been alerted to Zammit's new advance. Hildingsson told OLAF that, accordingly, he had instructed Delfosse "to be careful in responding or talking to Zammit after I learnt that he was contacting ESTOC. Until then, Delfosse was not informed about the proposal put forward to Swedish Match. But at that time I decided to reveal what I knew to her."

This new development is perhaps the catalyst of what would become known as Dalligate.

Because at this moment, Swedish Match realised that Zammit - maybe suspecting how oblivious he was to the ESTOC-Swedish Match connection - could be baited to make the multi-million-euro offer again.

Gabrielsson himself informed Gayle Kimberley that Zammit was using her services to make his offer to ESTOC.

But in two interviews to OLAF - first as a witness, then as a person of interest - Kimberley contradicts herself and then is belied by Gabrielsson. "Johann told me Silvio was trying to have the same deal with Inge, and that now he tried to appear more professional as he was using my consultancy proposal to present it as a package for his services. I told Johan that I was not part of this and that I have never had any discussions with Silvio about this," she told OLAF director Giovanni Kessler during her first interview in Troia, Portugal.

She claimed that she had not had further contact with Zammit, when the two exchanged over 40 telephone calls and 110 SMSs between 13 February and 5 July 2012 - well after her first interview on 14 June with Kessler.

Then in her second interview with Kessler at the Internal Audit and Investigation Department in Valletta, she retracted one notch, admitting that it was her husband, Matthew Kimberley, who had forwarded on her behalf her proposal of services to Silvio Zammit with the intention that it reach British American Tobacco - with whom Zammit happened to be acquainted through its Maltese presence.

However she also alleged that it was Gabrielsson who had suggested to her, while at dinner on the evening of 13 February, that BAT could be interested in her consultancy services - something Gabrielsson denied when quizzed by OLAF.

"Gabrielsson did not know anything about the possible involvement of BAT or whether Ms Kimberley could have been working for BAT during this period," OLAF said. "He never asked Ms Kimberley to contact BAT [for] any reason and cannot understand for what purpose."

Enter Michel Petite: Barroso's 'ethics man'

15 March - With Zammit now suggesting to Delfosse that he could broker a meeting between "your boss and my boss" in Brussels, Hildingsson and Gabrielsson spoke to their general counsel and head of compliance, Frederik Peyron. He had previously suggested that they break off contact with Zammit and report the €60 million offer to the Swedish government.

Instead, using Inge Delfosse they entertained Zammit's new enquiry. What happened next was that they called Silvio Zammit on 29 March, recording the conversation, in which he suggested a €10 million fee to broker the Dalli meeting, and then took the matter straight to the European Commission, courtesy of Michele Petite. Petite is a senior lobbyist at Clifford Chance, whose clients include Philip Morris, Swedish Match's American partners. Not only that, but Petite was head of legal services at the European Council.

Peyron himself told OLAF what happened after the 29 March phone call: "We started planning for how to report this matter to the relevant EU authorities and contacted Michel Petite at Clifford Chance to receive advice. At our request he contacted [EC secretary-general] Catherine Day, and we submitted a written report on the matter."

It remains unreported as to when Petite contacted Catherine Day and whether this took place over the next two months before Swedish Match officially wrote to her on 21 May 2012. As irony would have it, Petite was sitting on José Barroso's ethics commission on lobbying and transparency. With Swedish Match as his client, informing his former colleague Catherine Day should have been only a matter of a phone call. The question is: Were members of the European Commission - people like Day and Barroso - already aware of the compromising recording?

And given the obvious link between Swedish Match and ESTOC, were they hoping that baiting Zammit would give them a new way of spiking the Tobacco Products Directive that was going to uphold the snus ban?