‘OLAF critics can take accusations to EU court’ – Kessler on Dalligate

The director of the EU's anti-fraud agency invited his accusers and critics to report the alleged illegalities of an investigation into former Maltese commissioner John Dalli, to the European Court of Justice.

In his final commentary to an eight-minute reply to MEPs of the budgetary control committee, Giovanni Kessler said that any possible violation of human rights in the way he investigated an alleged €60 million bribe to get Dalli to reverse a smoking ban, should be evaluated by the EU's court in Luxembourg.

"The possible violation of human rights has to be evaluated by the Court of Justice upon the initiative of the people who claim these rights have not been respected. If we committed crimes - 'crimes' we have been accused of by people and especially the press - this has to be decided by an office of prosecution."

Kessler's blasé suggestion found an instant reply from Green MEP José Bové, who said the OLAF director's comments were surprising. "So brushing a commissioner aside is fine. But as for crimes begin alleged, then it should be the ECJ to deal with it? Hearing this now reaffirms the need to have a special committee on the Dalli investigation to see whether the rules - which today we heard were not complied with - were respected in this particular investigation."

Dalli was forced to resign by European Commissioner José Barroso on the strength of a covering letter to the OLAF investigation, which however stated it had no direct evidence but circumstantial evidence that Dalli was aware of a €60 million bribe to reverse the EU ban on smokeless tobacco.

OLAF chief Giovanni Kessler today defended his office in the discharge of its duties in the Dalli investigation, which the OLAF supervisory committee found had breached fundamental human rights.

According to Supervisory Committee member Catherine Pignon, OLAF refused access to its own data to the watchdog, saying that the SC encountered difficulties despite clear rules established in the Franchet-Byk judgement of the Court of Justice.

"We see a major divergence here that stands in the way of us carrying out our duties, she said with reference to OLAF's stonewalling.

Pignon also pointed out that breaches in privacy and a lack of a legal basis for the recording of private telephone calls were in breach of the European Convention of Human Rights and the EU Charter of Fundamental Freedoms.

Another SC member, Herbert Bosch, said that the case where Barroso forced Dalli to resign "was something wholly new" - "I think this was a test of OLAF's independence, and that's why we drafted the report as we did," he said referring to the Supervisory Committee's opinion that suggested that OLAF director general Giovanni Kessler bypassed the agency's rules and took a personal interest in investigating the case.

Kessler defended the role of his office, saying OLAF was in the past treated like a supermarket of data that could be asked to dispense confidential information to everyone.

"There was an interest at stake, protecting the privacy of people and organisations," he said of rules that were implemented in February 2012, based on a binding opinion of the European Data Protection Supervisor.

Kessler also said that the Franchet-Byk case does impose a timing as to when the OLAF report had to be transmitted to the supervisory committee. "There were no objections to transmitting the report or data to the SC, and that's what we did."

Graessle report

In a dossier presented by the European People's Party chief rapporteur on OLAF, Kessler was accused by Inge Graessle MEP of having attempted to suborn witnesses in keeping up the pretence that Dalli was present at a meeting where a cash offer might have been - which never happened; and of using the secretary-general of the European Smokeless Tobacco Council to call Zammit in an attempt at substantiating their accusation.

Graessle said the recording of this private telephone conversation, carried out by ESTOC in the presence of OLAF investigators, amounted to illegal telephone interception. "Telephone interception is strictly regulated in many countries in order to safeguard the right to privacy... Apart from the fact that OLAF is neither a court nor a police authority, it is quite obvious that OLAF was given no authorisation to operate in this way."

Graessle also accused OLAF officials of having impersonated a Spanish civil servant - revealed in the criminal proceedings against Zammit by witness Gayle Kimberley - in what she terms was "an act of deception".

OLAF officials impersonating a Spanish civil servant had called Kimberley, before intercepting her in a Portuguese hotel lobby while she was on official business, to enquire about her whereabouts. The OLAF official allegedly said the Spanish government wanted to invite the gaming authority's lottery to address a conference on gaming.

"The offence was committed in that the OLAF staff member acted without the necessary authority, conferred in this instance by the Spanish state, claimed to discharge a public office (that of a civil servant) and performed an act reserved to the holder of that office. The definition of the offence requires guilty intent... that person knew they had no capacity to take on the office concerned and carry out the actions they carried out," Graessle says in her report.

Figures provided by OLAF itself show that in 2012, the anti-fraud office spent a disproportionate part of its manpower on the Dalli case. While 365 out of a total of 465 investigations OLAF led last year did not produce a result, almost 8% of the total number of interviews OLAF investigators conducted with suspects in all of 2012 were made in connection with the Dalli case (five out of 66). Similarly, six of the total 108 witness interviews conducted by OLAF investigators the same year were in connection with the Dalli case. Graessle said these figures suggested a gross misallocation of resources.