OLAF director Giovanni Kessler loses interim challenge on immunity in Dalligate investigation

General Court refuses request by OLAF director to suspend Commission decision lifting his immunity for Dalligate investigation pending ongoing case on challenge to immunity decision

Giovanni Kessler lost a legal challege to a European Commission decision to lift his immunity from prosecution
Giovanni Kessler lost a legal challege to a European Commission decision to lift his immunity from prosecution

Updated with clarification: The original report did not make reference to the fact that the General Court decided on a request to temporarily force the Commission to reverse its decision on Giovanni Kessler's immunity, pending the full completion of the court case on the Commission decision.

The EU’s top anti-fraud official has lost a legal challege to a European Commission decision to have the Commission temporarily suspend its decision to lift his immunity from prosecution, in connection with a Belgian police investigation.

His challenge to the Commission's decision to lift his immunity is still ongoing in the European Court of Justice.

Giovanni Kessler, director-general of the EU anti-fraud office OLAF filed a complaint in March with the General Court of the European Union saying the Commission’s removal of his protection from prosecution was a threat to the agency’s independence, which is guaranteed in EU law.

The decision by the Commission in March, after a year of wavering, was the first time immunity had ever been lifted for an OLAF official.

But the General Court of the ECJ has refused his appeal, saying that the Belgian police will be dealing with the accusation that Kessler listened in on a telephone conversation without permission on 3 July 2012 during OLAF’s probe of the Dalligate lobbying scandal, in violation of Belgian law. This, it said, would not affect OLAF’s independence.

In a comment on the decision, OLAF said that the Court's decision only refers to a request made by the OLAF Director-General for interim measures to be applied by the Court, as a matter of urgency, until the Court reaches a final verdict on the substance of the case he has filed.

"The Director-General had requested that through such interim measures, the Court temporarily and urgently suspends the application of the Commission decision lifting his immunity for an investigative act carried-out in the course of his professional duties. On 20 July, the Court rejected only this application for interim measures, not the entire case. The Court found that there was no urgency at stake at this moment in time. It did not rule on the validity of the arguments in law put forward by the Director-General. The case on substance is therefore on-going and will proceed as per the Court's usual rules and timelines."

The Belgian investigation focuses on allegations Kessler listened in to a conversation by witness Inge Delfosse – the secretary-general of the European Smokeless Tobacco Council – as she contacted Silvio Zammit from a speaker-phone.

Zammit is accused of soliciting a bribe and of trading of influence in a Maltese court, by having requested a multimillion bribe from snus producers Swedish Match, to influence then health commissioner John Dalli to lift an EU retail ban on the chewing tobacco.

The evidence gathered from the Delfosse call was not used in OLAF’s final Dalligate report. If proven that Kessler did listen in, he could face a prison sentence of up to two years and a fine under Belgian law.