‘By not forcing me to sack him, Dalli accepted his voluntary resignation’ - Barroso

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.

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, give it to the OLAF supervisory committee to vet before 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, did 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, because what the ECJ judges will determine is the context of the unfair dismissal claim.

Dalli released no comment to the press, saying the matter was still sub judice and that he did not want to influence the judges with his comments. "It would be unethical of me to coment on the case that has yet to complete its hearing. I do not want to interfere in the independence of the judges."

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; that he had no idea of what the OLAF accusations were, so he could not answer properly to the allegations.

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.