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Live-blog of Dalligate hearing in European Court of Justice
A media battle in one of the latest instalments of the Dalligate saga turns out to be one of José Barroso's small victories in the never-ending affair.
Last updated on 7 July 2014, 8:37pm
Matthew Vella
Matthew Vella
7 min read
Not friends: John Dalli (left) and EC president José Manuel Barroso
European Commission President Jose Manuel Barroso (L) will appear at the European Court of Justice today.
The outgoing European Commission president José Manuel Barroso was cool and combative in his recollection of the fateful 16 October 2012 events when he told Maltese commissioner John Dalli that he had to resign over a bribery allegation.
Arriving in the General Court of the EU’s court in Luxembourg to testify on a claim of unfair dismissal by John Dalli, Barroso and his aides were compact and clear on the legal point they were driving at. Dalli, in not forcing his hand to sack him from the Commission as was entitled to by the Treaty of the European Union, had accepted to resign.
This point was reiterated several times by Barroso and his chief aides: claiming that Dalli had understood the severity of the accusations by OLAF, the EU’s anti-fraud agency, which suggested he had contacts with a tobacco lobbyist and that he took no action on the possibility of a bribe to influence tobacco rules he was reviewing at the time.
They also claimed that Dalli verbally told them he would be resigning, when asked by Barroso in their presence, only to demand that he wanted more time before a press announcement was made. Chief of cabinet Johannes Laitenberg and head of legal services Luis Romero Requena told the court that Dalli was trying to buy time.
These and other statements, such as painting Dalli’s meeting with ‘bar-restaurant owner’ Silvio Zammit in “undeclared meetings with tobacco representatives miles away in Malta from the Commission” were delivered by Barroso with much gusto, both in court and outside to the press. He described the meetings as “bizarre” and he played them out once again at the end of the court sitting, with much gusto.
Barroso won a crucial media battle in the Dalligate saga, by saying that Dalli was resorting to conspiracy theories, when his decision as Commission president, to prevent an embarrassing leak that would have delivered it the fate of the doomed Santer Commission, was a political one: Dalli had to leave.
Dalli called it a “death sentence” in court, while Barroso refuted suggestions that he should have considered the legality of the OLAF report first, that is, have the OLAF supervisory committee vet the investigative reportbefore taking a decision.
This was after all part of the problem in the entire Dalligate saga: the secrecy of the OLAF report gave rise to much speculation about Dalli’s guilt, while the lack of legal scrutiny of OLAF’s investigation was only made public in a leak of the supervisory committee report later on in 2013.
And only today Monday, the Supervisory Committee finally issue the official version of its legal scrutiny. Even this was bizarre, but it carries little weight in this court case.
The matter at stake
Dalli’s claim of unfair dismissal is centred around the events of the day: that earlier on 11 October, Barroso set up a meeting with Dalli setting no agenda for the meeting; that the two spent 90 minutes in debate over the covering letter from OLAF’s investigative report, which Barroso had been aware of; that two press statements had been prepared for his resignation: one in which he would have resigned voluntarily, the other announcing he had been sacked.
Dalli’s defence pushed the line that there was no serenity for the former commissioner on how she should act when, according to Dalli, Barroso demanded that he leave, with just 30 minutes’ notice.
Barroso was claiming that he was ready to believe Dalli if he could explain to him what OLAF were talking about, and that he entered the meeting with an open mind.
So when asked why a press statement ‘exonerating’ Dalli of OLAF’s accusations was not prepared, Barroso replied: “In that case there would have been no press statement, and I would have thought again how best to manage that situation. I was preparing the statements only in the case of the resignation. I insist on this point because the arguments of Mr Dalli are absurd: the best evidence that he resigned of his own free will was that I did not ask him to resign. If I did not want him to continue in the Commission, the best way I had was to terminate his role.”
Laitenberg stood by his master in saying that Barroso was ready to accept Dalli’s explanations, but that they could not possibly predict this outcome in their draft statements for the day.
It was a sort of game of ‘known unknowns’: Laitenberg said it was normal to predict these kind of situations, what kind of options would result – but that they could not predict what kind of explanation Dalli would give to the damning OLAF conclusions.
“Barroso's decision had to be political. The precedent had been set by the resignation of the Santer Commission, and the Treaty had already made possible a request for the President of the Commission to demand such a resignation. And in the context of previous occasions of improper behaviour, a quick and clear handling of such situations was essential to prevent irrevocable damage. Time lost cannot be retrieved, there is no period of grace in these situations, otherwise everything would then be determine by rumour and speculation.”
Laitenberg was asked by rapporteur Judge Forwood whether the fact that Dalli had not seen the OLAF report – which he could not have access to until it was passed on to the Attorney General – made it unrealistic for Dalli to provide a convincing answer to Barroso.
Dalli’s defence made it clear that Barroso was well aware of the OLAF conclusions, having been informed by EC secretary-general Catherine Day that the outcome was not positive for Dalli.
Barroso himself said he had met Dalli over the OLAF investigations back in July, having told him to ensure he cooperates fully due to the seriousness of the matter.
European Commission president Jose Manuel Barroso will appear at the European Court of Justice in Luxembourg today, on a complaint of unfair dismissal filed by his former health and consumer affairs commissioner John Dalli.
He will answer judges’ questions as a witness, before lawyers from both sides give their arguments on Tuesday.
Dalli says he was forced to resign on 16 October 2012 on the basis of the covering letter to an investigative report by OLAF, the EU's anti-fraud agency, claiming that he was aware of an attempt to solicit a bribe from a Swedish firm, Swedish Match, to influence tobacco rules or reverse an EU retail ban on smokeless tobacco snus.
Barroso’s head of cabinet, Johannes Laitenberger, will be at his side in Luxembourg, as well as the head of the commission’s legal services, Luis Romero Requena.
Dalli’s former head of cabinet, Joanna Darmanin, and former spokesperson, Frederic Vincent, have also been asked to testify.
Dalli wants the Court to annul Barroso’s request for his sudden resignation on grounds he had secret contacts with Swedish Match, a mouth tobacco company.
He also wants the commission to pay a symbolic €1 in damages for the “non financial” harm he has suffered, and compensation for his loss of earnings as a commissioner.
The European Commission insists that Dalli stepped down of his own accord.
European Ombudsman Emily O'Reilly has now opened a probe into allegations that the Commission failed to disclose meetings with tobacco lobbyists in contravention of United Nation rules. As a signatory of the World Health Organisation's Framework Convention on Tobacco Control, the EU is required to reveal all meetings with the tobacco industry.
O’Reilley’s probe stems from a complaint by the transparency group Corporate Europe Observatory (CEO), which says top commission officials from the secretariat-general and members of Barroso's cabinet held 14 undisclosed meetings.
The contested meetings include representatives from tobacco giant Philip Morris International, Swedish Match, and an unregistered lobbyist working for the European Smokeless Tobacco Council.
Matthew Vella, a freelance journalist at MaltaToday, was formerly executive editor at Malt...
President Barroso spoke first, saying he had the covering letter to the OLAF investigation, and that this had been painful from a human point of view, and that Dalli would have to resign.
Dalli said he should have had the possibility to defend himself by his lawyers and that the process was wrong. Barroso replied that Dalli had all the possibilities to seek redress. Dalli said that the damage would have been done.
President Barroso spoke first, saying he had the covering letter to the OLAF investigation, and that this had been painful from a human point of view, and that Dalli would have to resign.
Dalli said he should have had the possibility to defend himself by his lawyers and that the process was wrong. Barroso replied that Dalli had all the possibilities to seek redress. Dalli said that the damage would have been done.
President Barroso spoke first, saying he had the covering letter to the OLAF investigation, and that this had been painful from a human point of view, and that Dalli would have to resign.
Dalli said he should have had the possibility to defend himself by his lawyers and that the process was wrong. Barroso replied that Dalli had all the possibilities to seek redress. Dalli said that the damage would have been done.
“He could have left the room and forced me to take a brave decision… which he did not do. My explanation is that he changed afterwards… he chose another strategy.”
Judge: How did you expect Dalli to produce a convincing explanation without making him aware of the report?
Judge Forwood: It is being suggested that you presented Dalli with two versions of a press statement depending on the outcome of the meeting. Can you remember whether you produced them?
Barroso: We were concerned. It gave me no pleasure that one of my commissioners was being investigated. I was not aware of the details but I was concerned, and we discussed the possible consequences of this process (with his head of legal services and his chief of cabinet).
“After I called the Maltese prime minister for the first ever time on the OLAF investigation and we agreed to launch the process to replace the commissioner.”
“I have never experienced such circumstances, a similar loss of confidence. I lost completely my political and personal confidence in Dalli when I got to know of these facts, and he could not give me a good explanation about them. Just the fact that he was having strange contacts with the industry during the TPD review. He admitted to me that he had been imprudent about these meetings. In our discussion we talked about how he needed time to defend himself, and that it would be impossible for him to carry out the TPD review while defending himself.”
“Dalli asked me to have full access to the contents of the OLAF report. I told him that I myself could not have access to the report, because there is a regulation that makes it clearly illegal to make the report public before some conditions are met [being submitted to the Maltese attorney general].”
“It was clear, to me, that politically it was unacceptable that he stay on in is position. We had a long discussion and I gave him a clear choice between two alternatives: I asked him what he would do, and he said that he would prefer resigning of his own accord. I could not give him more time, because there could have been leaks, and that this could have been damaging to the institution.”
“To me it was clear that it was politically untenable for Dalli to keep his post as commissioner.”
Barroso says that the OLAF investigations were also sent to the Maltese police. “This was the document that I was provided with. Having read the letter to him, I asked him to comment about it. He did not deny meeting tobacco representatives brought by Mr Zammit… I could not understand how a person responsible for the tobacco products directive could have meetings with members of the tobacco industry, many miles away from the Commissioner, and using a restaurant owner to organize the meeting. This was bizarre.”
“The letter concluded that Commissioner Dalli’s behaviour could be seen as a breach of his dignity to conduct office.”
Barroso said he had met Dalli on 25 July, to speak of the allegations. Then he met on the 16 October, where he read him the contents of the OLAF investigation covering letter. He says that Silvio Zammit was considered by tobacco representatives as the intermediary to get contact with Dalli, and to speak on his behalf. “This was the framework that allowed Zammit to ask for bribes in exchange for the adoption of a proposal to life the ban on snus.”
Outgoing EC president José Manuel Barroso now testifying in English: “I will give you the facts as they happened. Yes – Dalli resigned of his own will in my office on 16 October, 2012. He did it in the most unambiguous manner. Various accusations were made on Dalli, of improper contacts with the tobacco lobby and of being aware of bribery.”
Dalli is asked whether he recalls being told by Barroso that he had lost confidence in him and that the Commission’s reputation was at risk. Dalli says he doesn’t recall the conversation going in that direction. Dalli says this was similar to the way he had been asked to resign by Lawrence Gonzi in 2004 on the basis of false allegations by a private investigator.