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[LIVE] Court hears submissions in unfair dismissal claim

Second day in final hearings for John Dalli claim of unfair dismissal being heard in the General Court of the European Court of Justice.

matthew_vella
Matthew Vella
8 July 2014, 1:21pm
John Dalli has taken the European Commission and president José Barroso to court over a claim for unfair dismissal
John Dalli has taken the European Commission and president José Barroso to court over a claim for unfair dismissal
16:32: End of court hearing.
16:26: Dalli's lawyer say that the Commission was aware of the OLAF press conference on 17 October, 2012, because it was actually made known by an official of Swedish Match itself, quoting: 'they had been informed two days before the 15th October, that there would be a communication by OLAF." So there were people inside the European Commission who were aware of the impending press conference, and that is why 24 hours' notice were not given to Dalli.
16:24: Dalli lawyers say that Barroso was informed that OLAF was to pass on their report to the Maltese Attorney General, and that this should have been given to OLAF-SC for its review of the case. “The Supervisory Committee had five working days to receive it, and only received it on 18th October after it had been passed to the Maltese authorities.”
16:21: Additional points from Dalli lawyers.
16:06: Keppenen: "The OLAF-SC never reacts to the European Commission or any other institution of the Union, on an OLAF investigation."
16:04: Keppenen for the EC says that the question should have been made yesterday to the witnesses.
16:03: Forwood: Is the EC suggesting that it was not aware that OLAF director-general Giovanni Kessler would be calling a press conference the day after the resignation; when the report itself was being sent to the Maltese attorney general.
16:01: Judge Forwood now asks EC lawyer Keppenen about the OLAF supervisory committee's role in the investigation.
16:01: "Dalli was waiting to have his dismissal put in writing, but he found the content of the resignation letter unacceptable. We cannot infer from the fact that only a few sentences had been crossed out by Dalli, as opposed to the rest of the letter's content, that Dalli was satisfied with the rest of the resignation letter."
15:59: Dalli’s lawyer says Dalli did not agree with the resignation letter as it was presented to him, and that he did not sign it: “the important point here is that he did not sign it.”
15:54: Dalli’s lawyer replies to Judge Forwood on a question about Barroso requesting Dalli to amend a press statement: “My client denies being read the amended statement.”
15:47: Smulders for the EC: Dalli told Barroso in a letter of the 21 October that “you [Barroso] said you would dismiss me on Article 17(6) but I chose to resign instead.”
15:45: Judge Papasavvas: “Let us imagine that Barroso told Dalli that he should either resign or face dismissal under Article 17(6). Is the defence saying that at the moment Barroso gave him these two options, your client did not have the free will necessary to consider these choices?”

Defence replies: “Yes”.
15:43: Dalli’s lawyer: “Barroso did not want to be the first EC president to dismiss a Commissioner under Article 17(6) and that it would have been easier for him to secure a voluntary resignation.”
15:42: Dalli’s lawyer replies: “In our view, termination does not necessarily mean a recourse to Article 17(6)… Dalli felt forced with no option for various reasons that I will not repeat here; there was no choice... Dalli felt forced, entrapped in the meeting with no possibility to stay on as a member of the College of Commissioners.”
15:37: Judge Papasavvas: “It seems to me that the simple mention of Article 17(6) – dismissal – as an alternative scenario to voluntary resignation, in itself could not be argued as something that forces you to resign: it is a possibility that is open to the Commission president. “The truth is also that I did not hear anything from [Dalli] that gave us the impression that he was forced in any way whatsoever by the President to resign. So all that seems not that clear, and I want your clear position on that matter – if he was forced to resign how was he forced to resign? Was it simply by the invocation of Article 17(6) or was it something further than that?”
15:34: Judge Forwood asks whether Barroso offered Dalli the option for a voluntary resignation as ‘grace’ for the other option, a dismissal, when considering the context that Dalli had faced similar accusations in 2004 when he was told to resign. Dalli’s lawyer says that the discussion between Dalli and Barroso did not proceed in this manner.
15:32: Dalli’s lawyer: “When Dalli entered into the meeting, he was put given the option of either resigning on a voluntary basis or be forcefully dismissed. There was no explanation given to Dalli on what ‘game we’re playing, what the rules applying to me are’ – this was something that Dalli said. He was not understanding the legal consequences of the choice he was being faced with. And we consider that the communication by the President led to confusion as to which were the legal rules applicable in the case. And this explains why there might be no contradiction between Barroso asking for a voluntary resignation: in any event at the end of the meeting, Dalli would no longer be a member of the Commission, because had he not voluntarily resigned, Barroso would proceed with the dismissal.”
15:24: Dalli’s lawyer: “The discussion was about Barroso trying to make Dalli resign on a voluntary basis.”
15:23: Dalli’s lawyer: “As of the moment that Dalli entered the meeting and even before, there was a decision that was already taken and a fait accompli. We said that there could be another qualification of that decision, that is for Barroso to use the Lisbon Treaty’s power to impose a decision [to sack Dalli]. The fact that there was actually no real option, because Dalli did not resign voluntarily, [Barroso said] ‘I will eventually dismiss you’, then there was a use of Article 17(6) [to dismiss Dalli].”
15:20: Dalli's lawyer says the question is "important and difficult".
15:19: Forwood has made a rather long question on the 90-minute discussion between Dalli and Barroso... Dalli's lawyers are taking their time now to answer to the, admittedly complex question.
15:18: Forwood: Dalli has presented in his evidence that two options were presented to him, but that Barroso took only one option – essentially, that he did not have to demand his resignation.
15:11: EC lawyer Cruz: Dalli gave own explanations to OLAF during the investigative process, earlier on in the summer of 2012.
15:10: Forwood asks Commission at what point was Dalli granted the opportunity to explain properly any defence to the OLAF accusations.
15:06: Lawyers have finalised submissions, and now it's up to rapporteur judged Forwoord to put questions to the lawyers.
15:05: EC lawyer Keppenen says the OLAF-SC took two months and a half to review the OLAF investigation, and that this could not have been admissable in the case of a political decision that Barroso had to take.
15:03: The Commission lawyers are saying that the OLAF-SC's review of the OLAF investigation are not relevant because the internal rules of OLAF investigations do not bind the Commission.
15:00: "On substance, the Commission considers that the Court can only intervene if it was rendered manifest that the President abused of his powers."
14:56: Smulders says that Dalli did not force Barroso's hand in having to sack him, something reflected the spirit of a Dalli statement issued on 21 October, 2012.
14:51: Smulders says that aide Frederik Vincent recounted that Dalli held a five-six minute meeting with his Cabinet team and told them he would "go back to Malta to defend his reputation".
14:49: Smulders points out that Dalli "is no civil servant but an experienced politician" who should have surmised as to the nature of the meeting.
14:48: Smulders says that Dalli told his cabinet chief Joanna Darmanin, on 11 October when Barroso was asking to fix a meeting, that there was "no need" to inquiry about the agenda of the meeting.
14:47: Smulders: Dalli was fully aware of what was at stake before the 16 October meeting - he had two meetings with OLAF in July and September. And he had also had a meeting on 25 July with Barroso.
14:45: EC lawyer Smulders: Dalli cannot have his cake and eat it - in reference to Dalli not having forced Barroso to make him resign.
14:41: The EC lawyer says Dalli demanded that his resignation be made to him in writing. "Traces of this position are found in the application where it is stated that the resignation had to be made in writing."
14:39: Again, the EC lawyer quotes Lawrence Gonzi's ministerial statement in the Maltese parliament of 16 October 2012, to say that Dalli had confirmed he had resigned of his own will "to be in a better position to defend himself".
14:38: He also states that the fact that the Barroso/Laitenberg/Romero witness trio had converging statements, gives them "strong probative value" as witnesses, and invited the Court to consider this.
14:36: EC lawyer again reminds the court, that the fact that Barroso was not required to force the resignation through, was a confirmation that Dalli had accepted to resign.
14:33: EC lawyer says the burden of proof of the claim of unfair dismissal lies with Dalli.
14:32: EC lawyer says Laitenberg and Romero Requena (Barroso chief of cabinet and DG legal services, respectively) prepared their statements on their own; without being coached into what to say.
14:29: The issue at stake now is the legality of Article 17(6) of the Treaty in making Dalli resign, and the fact that Dalli actually accepted to resign, making his claim inadmissable.
14:28: End of submissions on Dalli's lawyers' part, and start of the European Commission's lawyers' submissions.
14:26: "The right to be heard needs access to information" - Dalli's lawyer over the issue that Dalli had no access to the OLAF report.
14:26: Dalli's lawyer says Barroso was afraid of a leak: "from where, the tobacco industry, from OLAF, that OLAF would make its own announcement before the Commission... so it was more than reasonable that, in the case Dalli was in the position to be heard and give a convincing statement, a third statement reconfirming Barroso's trust in Dalli should have been prepared. There was no third statement because there was no possibility of Dalli being heard."
14:21: Dalli's lawyer reminds the court that the OLAF-SC's opinion on the OLAF investigation on Dalligate was only issued on Monday yesterday, and that the OLAF-SC pointed out that Dalli's fundamental human rights were breached by not granting him a fair hearing during the investigation.
14:20: Dalli's lawyer: "There were no checks on the report, and you know the OLAF-SC is not happy with this report."
14:19: Dalli's lawyer points out that the OLAF-SC had, legally, to be the first to scrutinise the OLAF investigation. We know that the OLAF-SC was actually prohibited from vetting the report, because OLAF sent it straight over to the Maltese Attorney General.
14:18: Indeed, Dalli's lawyer points out that none of the aide who testified yesterday contradicted the view that it was not their job to see that the OLAF supervisory committee - the guardian of fundamental human rights and OLAF's procedure – vets the investigation.
14:17: Dalli’s lawyer says the allegations were deemed serious, because OLAF said so, because it had no other choice having conducted the investigation itself. And yet, as it turned out, the OLAF supervisory committee had not yet vetted the validity of the investigation.
14:14: Dalli's lawyer says the findings of OLAF were accepted without question [as discovered much later, when the OLAF report and the supervisory committee's opinion were leaked, the investigation was riddled with questionable breaches of internal rules and fundamental human rights].
14:12: Dalli’s lawyers say that the Court must act as a guardian of fundamental human rights, and that it should review the decision to terminate Dalli’s office in the light of the European Union Charter of Fundamental Rights.
14:09: Case-law quoted in pointing out that a judge of the ECJ should decide whether the reasons provided for a resignation are made clearly and are not in breach of fundamental human rights. We're still with Dalli's lawyers' submissions here.
14:05: “Dalli told the court that he ‘felt sacked’ – that was the outcome of the meeting. The verbal decision by the EC president to terminate his office was established.”
14:04: “Dalli was convoked to a meeting with a clear and unique purpose: to terminate his office. He was facing a fait accompli because the decision of the president had already been taken,” Dalli’s lawyer says, saying that the press statements announcing his resignation had already been prepared.
14:02: Mr Barroso had sufficient time with his advisors to arrange a meeting with Lawrence Gonzi between the 11th and 16th October. Dalli’s lawyer says, why did Barroso set up such a short time-slot on the day of his resignation to make his call to Gonzi, if it was the first time he was speaking to the Maltese prime minister about the investigation and the resignation.
14:00: Dalli’s lawyer lists the following three statements made by Barroso: “This was not a legal process, this was a political meeting, my responsibility was that he [Dalli] does not stay in the Commission, the fact that he does not have access to the OLAF report could not be a reason for me not to take action.”

“This was not a review of process, this was a political decisions.”

“The Treaty empowers the EC president to take decisions to sack the commissioner precisely for this situation.”
13:57: Dalli then had his own aides refuse to issue a statement on his behalf explaining his own version of events; and that later on in the day, he did not mention his voluntary resignation in an interview to TVM “in the meaning as laid down by the TFEU”.
13:54: Dalli, for example, did not sign the resignation. His lawyer says legal services head Luis Romero Requena mentioned that the draft letter was made for Dalli to defend himself. “Why would someone who resigns ask his employer to allow him to explain the reasons for his resignation.”
13:53: So Dalli’s request for the OLAF report, or 24 hours’ notice to consult his lawyers, and requesting a draft resignation letter, provides a context in which Barroso was not given a “clear and unconditional” consent to resign.
13:51: Dalli’s lawyer says Barroso should have, basing himself on case-law, secured a clear and unconditional resignation in proceeding to the termination of the post.
13:50: Dalli’s lawyer says the burden of proof of resignation lies with the party depending on it – that is, on Barroso.
13:48: Dalli says he never submitted in writing his voluntary resignation: remember, he did not sign any statement.
13:48: Dalli is contesting the oral decision by Barroso to terminate his position in the European Commission. How did the termination of this job – Dalli was commissioner in the morning, and then informed he will no longer be commissioner at 3pm of 16 October 2012, when Barroso informed Lawrence Gonzi – occur?

Dalli claims Barroso did not apply the proper provisions of the law from the Treaty of the Functioning of the European Union, to terminate his office – death of the member, voluntary retirement, appointment of a new commissioner, or the retirement of the member.

13:44: This may get technical...
13:43: Dalli's lawyers to start proceedings.
13:42: Court hearing is resumed.
13:41: You can read Barroso's statement to the court here.
13:39: More importantly, Barroso secured himself a media victory yesterday: this court hearing is not about the tobacco lobby's influence on EC policymakers, or the suspicious circumstances leading to the €60 million Swedish Match/ESTOC bribe; or the over-zealous OLAF investigation that led to the breach of its own internal investigative rules; or the failure of the Maltese police to finally bring Dalligate to some form of proper closure inside the Maltese courts. This case is about the Dalli resignation on 16 October, 2012.
13:35: Barroso and his aides on the other hand delivered a politically reasoned approach to the resignation: that Dalli had allegedly not protested vehemently against the request to resign; that he conceded that his contacts with tobacco representatives (two meetings, although this was not made evident to him at the time) were improper; that Dalli could not have all the time he requested because of the risk of a leak and the damage to the EC's integrity; and more importantly, that Dalli did not force Barroso into actually sacking him by refusing to leave the Commission.
13:32: Much of yesterday's proceedings centred round the events of 16 October, 2012, the day Barroso informed Dalli of the OLAF conclusions. Dalli's lawyers pushed the line that Barroso had made Dalli's resignation a fait accompli, and that he forced through a hasty decision to give Dalli no time to respond to the accusations, apart from the fact that the OLAF report was not made public (as per EU law) but even more seriously, had been unvetted by the OLAF supervisory committee.
13:24: To recap yesterday's events, former European Commissioner John Dalli is asking the EU's Court - more precisely, the General Court of the European Court of Justice - to annul the European Commission's termination of his position. In a nutshell, his is an unfair dismissal claim: was he removed from the Commission in breach of EU laws?
13:22: Good afternoon, we're resuming our live blog from Luxembourg for the final submissions presented in the unfair dismissal claim filed by John Dalli against the European Commission.
Lawyers today make their final submissions in the claim of unfair dismissal filed by former European Commissioner for health and consumer policy John Dalli.

Yesterday's live blog can be read on www.maltatoday.com.mt/news/dalligate

Read our report of Monday's live-blog from the Dalli-Barroso encounter here.

 

matthew_vella
Matthew Vella is executive editor at MaltaToday.