OLAF felt that although there was no direct evidence found connecting the John Dalli to the bribe request, there was "unambiguous circumstantial evidence" in the form of phone calls repeatedly made between Silvio Zammit and Dalli at crucial times: in between Zammit's conversations with ESTOC for example, or after Zammit's interrogation by OLAF chief Giovanni Kessler.
Taken in isolation, the dates and phone calls paint the picture of circumstantial evidence that convinced Kessler that Dalli 'must have been aware' of Zammit's machinations.
Dalli on the other hand, insists in his interviews that he never discussed anything to do with snus with Zammit after a meeting with Gayle Kimberley on 6 January 2012, and that the phone calls were concerned with the PN's internal problems or news about other mutual friends.
But OLAF says that Gayle Kimberley prepared a note for Zammit on 7 February, evidenced by the properties of the electronic file of this note, of questions he had to ask Dalli on a 10 February meeting. The 'Meeting with the Commissioner' was returned to her with hand-written notes - to OLAF this meant that Dalli had discussed snus well after the 6 January meeting with Kimberley.
In his final summary, Kessler stated there was "no conclusive evidence of the direct participation of Commissioner John Dalli either as instigator or mastermind" but that the circumstantial evidence indicated that Dalli was aware that his name was being used by Zammit to gain financial advantage.
Even if Zammit was acting on his own, Kessler felt that Dalli "could have breached his ethical obligations" by violating the Commissioners' code of conduct, and minimising during the OLAF interviews the extent of the contacts he had with Zammit.
"At no stage did Dalli take action to disassociate himself from the facts or to report the circumstances of which he was aware. As a result... it can be considered that Dalli put at risk the image and the reputation of the European Commission in the eyes of the tobacco producers and, potentially in front of public opinion.
"Finally, the inconsistency of Dalli's statements, together with the findings of this investigation relating to him, could be seen as a serious breach of his duty to behave in keeping with the dignity and duties of his office."
Kessler's conclusions on Dalli ultimately rested on five planks.
1. Use of Dalli's name for the alleged bribe
After meeting Dalli on 10 February, Zammit himself told Gayle Kimberley that it would take a "six zeroes" figure to lift the snus ban. Kimberley sent Zammit to Dalli with a typed note of questions he had to ask the commission, and Zammit returned with some scribbles on the paper, which seemed to reflect information he got from Dalli.
Kimberley herself alluded to "they" - as in Zammit and Dalli - when telling Swedish Match of a prospective money request; and then there were Zammit's request for €60 million and €10 million. In the latter request, made the 29 March, it is Inge Delfosse who mentions "John" twice, while Zammit says "this is the price he is asking".
2. Unofficial meetings and telephone calls
In meeting Tomas Hammargren from ESTOC, Gayle Kimberley and then Silvio Zammit in three separate meetings, Dalli was said to have gone against advice from the Commission to meet lobbyists in this regard or that he encouraged such contact.
Additionally, OLAF felt that there was a pattern of telephone calls exchanged between Dalli and Zammit with links to the snus talks: 17 calls and two SMSes were exchanged between 5 January to 17 July, with links of the events taking place.
- A telephone call when Zammit lunched with Delfosse;
- Two calls on 5 and 6 January, at the time of the Kimberley meeting;
- A call Zammit made to Dalli and Kimberley on 16 January when Delfosse asked Zammit how much we would charged to set up a meeting;
- The 29 March calls between Zammit and Dalli, and between Zammit and Kimberley in the period between and after the calls in which Zammit requested €10 million from Delfosse;
- Two calls on 16 and 17 June, after Zammit learnt that Kimberley had been interviewed by OLAF;
- A call from Zammit to Dalli on 6 July after having been interviewed by OLAF in Malta.
3. Zammit's friendship with Dalli
Dalli's association with Zammit - OLAF believed - allowed the businessman to assume "high importance in front of possible stakeholders".
4. Lack of reporting about the meetings
Dalli did not report his "unofficial" meetings on snus to the Commission or DG Sanco.
5. Inconsistencies in Dalli's statements
Dalli retracted some of his claims from his first interview, in a letter he sent to OLAF a week after the 16 July interview: for example that he did not meet Zammit on 10 February, which he later confirmed, but denied discussing snus.
Dalli claimed he was not aware of the OLAF investigation before receiving the invitation on 11 July. Yet Zammit called Dalli on 6 July, the day after his first interview with OLAF chief Giovanni Kessler in Valletta. "It is reasonable to believe that during at least one of these calls or both of them he had been informed in detail about the OLAF investigation."