OLAF chief Giovanni Kessler fights immunity removal over Dalligate

In a saga that refuses to die down, the EU’s anti-fraud chief has launched a legal challenge to the European Commission’s decision to lift his immunity from prosecution in connection with a Belgian police investigation on the Dalligate affair.

Giovanni Kessler, director-general of the EU anti-fraud office (OLAF) filed the complaint in the General Court of the EU, saying the removal of his protection from prosecution was a threat to the agency’s independence, which is guaranteed in EU law.

Kessler said the EC’s decision in March – the first time immunity had ever been lifted for an OLAF official – put his “independence, and that of OLAF, at risk.” 

The EC’s decision to lift Kessler’s immunity allows Belgian police to investigate allegations that Kessler listened in on a telephone conversation without permission during the agency’s investigation of the Dalligate scandal, in violation of Belgian law.

Kessler was tasked to investigate claims by Swedish Match, a Swedish company producing snus tobacco, that Maltese national Silvio Zammit had solicited a €50-€60 million bribe on behalf of health commissioner John Dalli to lift an EU retail ban on snus.

Dalli left in October 2012 without having been allowed to read the OLAF report that prompted EC president José Barroso to request his resignation. In 2015, Dalli lost an appeal for unfair dismissal, in a decision by the European Court of Justice that confirmed he had resigned.

The Belgian investigation, according to documents seen by Brussels political newspaper Politico, focuses on allegations that Kessler listened in to a conversation by Estoc secretary-general Inge Delfosse while she contacted Silvio Zammit on a speaker-phone. The call was not used in OLAF’s final Dalligate report. But if proven that Kessler did listen in, he could face a prison sentence of up to two years and a fine under Belgian law. Belgian authorities can still continue their investigation while the court case is being considered. But if EU judges rule in favour of Kessler his immunity from prosecution would be restored.

The former commissioner, John Dalli, received news of OLAF’s legal challenge by dismissing the action as a “game” being played out in Brussels.

“I wouldn’t be surprised that the Commission, because of a weak defence, loses the case and then says it was the court that prevented it from lifting immunity [for Kessler].

“The Commission lifted Kessler’s immunity partially after a full year’s negotiation with the Belgian police to dictate on what the police can investigate Kessler. Is this not political interference in the course of justice?”

“Can the Commission explain why it is harbouring a criminal? Can it explain how my human right to defend myself against Kessler’s fraud has been safeguarded?”