Dalli: Barroso made political decision based on fraud

In the second hearing of John Dalli's case of unfair dismissal against the European Commission, Dalli's lawyer present to judges a scenario in which the former commissioner was faced with a fait accompli that could only result in his ousting.

John Dalli accused Barroso of basing his political decision on a fraudulent investigation by OLAF.
John Dalli accused Barroso of basing his political decision on a fraudulent investigation by OLAF.
Dalli: Barroso's 'political decisions' based on fraud

The final submissions from the lawyers of John Dalli and the European Commission in the EU’s court were a far more sober affair than the political recriminations of Monday’s hearing, that gave José Manuel Barroso a stage to hit out at Dalli one last time.

In Tuesday’s hearing, judges from the General Court of the European Court of Justice put forward the likely scenario in which the decision on Dalli’s claim of unfair dismissal will be taken.

Was Dalli accorded the kind of serenity he should have had when presented with the prospect of being fired from the Commission; or was Dalli accepting to resign voluntarily instead of forcing Barroso’s hand and firing him?

Dalli’s defence was forthright in its submissions. Barroso wanted Dalli out, but without having to do the dirty work of invoking Article 17(6) of the Lisbon Treaty and sacking him. The 90-minute discussion between Dalli and Barroso was intended at cornering Dalli into ‘accepting’ to resign.

Judges putting questions to the defence team had to delve into whether Dalli had the necessary free will to make an informed choice at that point: had Barroso really entertained the prospect of “expressing confidence” in Dalli despite the findings of the OLAF investigation; or was Dalli truly faced with fait accompli?

Turning this argument the other way round, the Commission’s lawyers put it that it was Dalli who did not exercise his own choice at forcing Barroso’s hand: by not making him sack him, Dalli was accepting the resignation.

But Dalli’s lawyers said that the choice of ‘exonerating’ Dalli was never on the cards. They know this because Barroso was aware of the OLAF conclusions before the 11 October when he set a meeting for the 16 October; because the decision to communicate the OLAF report to the Maltese attorney general crucially did not come with a review from the OLAF supervisory committee report; because OLAF director Giovanni Kessler’s press conference on the 17 October had already been set; and because Barroso’s phone-call to Lawrence Gonzi on the day of the resignation was so short, that the European Commission president seemed to have communicated the briefest of explanations to the Maltese prime minister about the resignation of the Maltese commissioner.

Dalli, in his first comments after the hearing, zoned in on the crucial point of the OLAF supervisory committee’s review of the investigation: “We now know why the OLAF-SC was not given access to the report,” he said of Monday’s official release of the review of the Dalligate investigation, replete with breaches of internal rules and fundamental human rights.

“Barroso knows that the basis of the OLAF report was a fraud… he made a political decision based on a fraud. [He wanted to get rid of me] because of the Tobacco Products Directive,” Dalli said.

The crucial importance of the OLAF-SC’s review of the Dalligate investigation was, as expected, not given equal importance by Commission lawyers. They maintained that OLAF was independent of al the EU institutions, and that the OLAF-SC’s review had taken months – too long a duration to expect Barroso not to take a political decision and expose the Commission to the disrepute it had suffered in the Cresson and Eurostat cases.

Another area of inquiry was about whether Dalli had accepted to resign by making the request to the Commission to have a written resignation letter prepared.

Dalli would have asked for amendments to the letter because he “found the content of the resignation letter unacceptable”. His lawyers said that the fact that Dalli actually amended parts of the letter could not necessarily mean that he agreed with the rest of the letter, as the Commission wanted to infer.

They also set much store in the fact that Dalli never signed the letter authored by head of legal services Luis Romero Requena, nor having been read the final resignation letter.

Judge Papasavvas asked Dalli’s lawyers whether his view of having been forced to resign, had come simply from the oral communication to him by Barroso that he would have sacked him in the case that he does not resign of his own free will.

“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.”

Again they said, “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’ – 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.”

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