The College of Commissioners has decided to lift the immunity of the European Union’s Anti-fraud Office (OLAF) chiefGiovanni Kessler, who will now potentially face the Belgian prosecutor on questions related to the Dalli investigation. The successful conclusion of the OLAF investigation led to the forced resignation of former Health Commissioner John Dalli in 2012.

The decision to revoke Kessler’s immunity was taken in a restricted session of the weekly College meeting of the European Commission on Wednesday, 2 March, New Europe reported. The meeting was attended only by the 28 Commissioners, the Director-General of the Legal Service, Luis Romero Requena, and the Secretary-General of the Commission,Alexander Italianer, an EU source told New Europe. Asked to confirm this information to New Europe, the European Commission declined to comment.

 The European Commission has waited more than a year to decide whether to allow Belgian prosecutors to question the EU’s top anti-fraud official over allegations he broke the law.

The unusual delay has raised concern among senior EU officials that the Commission is using the process of deciding whether to lift the immunity of Giovanni Kessler, the head of the European Anti-Fraud Office, as a bargaining chip to put pressure on Kessler to step down in what has become a clash between Europe’s rival political groupings.

 

In the dark

New Europe has uncovered that the Commission was first asked to lift Kessler’s immunity in December 2014, a request they have received several times since then. The story became public in May 2015, following an article in the press. An OLAF spokesperson told New Europe that the Director-General has never been officially informed of this request, nor has he seen any documentation on this matter.

The Commission has waited for more than a year to take a decision, prompting questions among high-level officials as to their real motives. Asked twice on Tuesday in the press room about why the Commission is taking so long to decide, the Deputy Spokesperson of the European Commission, Alexander Winterstein, declined to comment.

Sources inside the Commission have informed New Europe that Kristalina Georgieva, European Commissioner for Budget & Human Resources has been using Kessler’s immunity as a bargaining chip for months, actively offering him the “possibility” to resign from his post at OLAF, and take up another position in the European Commission, or see his immunity lifted. An OLAF spokesperson declined to comment on this matter. The European Commission also did not comment on whether the College was informed of such a discussion prior to the vote.

 Belgian authorities want Kessler’s immunity lifted so they can investigate allegations the OLAF chief secretly listened in on a conversation between witnesses linked to the 2012 tobacco lobbying scandal known as Dalligate. Belgian law prohibits surreptitious monitoring or taping of phone calls.

The Dalligate investigation, which was carried out by OLAF, culminated in the forced resignation of then-health commissioner John Dalli over concerns about his unreported contact with tobacco lobbyists.

The scandal highlighted the prominent role played by tobacco lobbyists in the Commission’s tobacco legislation reforms and prompted the institution to overhaul its transparency rules in December 2014.

 

Political ping-pong

 The decision would actually help Commissioner Georgieva improve her relations with German MEPs who have long called to have Kessler fired, particularly Ingeborg Graessle, Chair of the Committee of Budgetary Control in the European Parliament.

Sources from the European Parliament have told New Europe that even the Chairman of the EPP Group in the European Parliament, Manfred Weber, wrote to the Commission, pushing for lifting Kessler’s immunity. By giving in to political pressure, Georgieva would garner the favour of the very people in charge of her budgetary discharge.

The move to decide on the lifting of Kessler’s immunity only four months before the UK referendum is also a potential ticking time bomb.

  

The legal case against Kessler

The greatest irony in the matter is that the Belgian prosecution case concerns the legal right of Kessler to suggest to one of the witnesses to record a telephone call. This call was intended to be used as a piece of evidence establishing whether the associate of Dalli was soliciting a bribe in the Commissioner’s name. What is under legal scrutiny in Belgium is accepted in most of the European jurisdictions and under EU law.

 

A dangerous precedent

This not only prompts the question of whether Belgian or European law applies to European investigations, but also has serious implications on the work of OLAF investigators, and the Commission staff as a whole. Lifting Kessler’s immunity for an action taken in the course of his professional duty creates a dangerous precedent, which could potentially open OLAF investigators up to lawsuits.

The move will also have further implications on other Commission Directorates-General exposed to conflictive situations due of the nature of their work, such as DG Competition.

Under the regulation that established OLAF, Kessler cannot be fired or forced from his post without a complex disciplinary procedure. Unlike other Commission directors general, he can take legal action in EU courts if he believes a measure taken by the Commission “calls his independence into question.”

Kessler, a former center-left Italian MP, has come under political and personal attack from centre-right and left-wing members of the European Parliament ever since he took over as head of the anti-fraud office in 2011. MEPs critical of Kessler have used allegations that OLAF mishandled aspects of the Dalligate investigation as part of their campaign against the former Italian magistrate.

All EU officials, including those who work for OLAF, have legal immunity from prosecution. Because of the special nature of OLAF’s work, the immunity of OLAF staff can only be lifted by a vote of the College of Commissioners, the Commission’s executive council. Such a vote would be unprecedented. 

Kessler declined to answer questions about the case.

 

Months of delays

Belgian authorities have long shown an interest in understanding how OLAF carried out its 2012 investigation into Dalli’s lobbyist meetings in Malta. 

Dalli resigned following Kessler’s report, even though it did not conclude that he had broken any laws.

The interest from Belgian law enforcement stems from detailed formal complaints lodged by Dalli, and which refer specifically to allegations Kessler listened in to a conversation by a witness as she contacted another witness from a speaker-phone.

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

The Belgian investigation of Kessler has dragged on for years, with witnesses providing evidence against him as recently as last October, according to Belgian police documents seen by POLITICO.

Kessler has been attacked in the European Parliament by prominent MEPs from both the centre-right European People’s Party (EPP) and the left-wing Greens, who have homed in on criticism by OLAF’s own internal watchdog over methods used by Kessler during the Dalligate investigation.

The influential president of the Budgetary Control Committee, Ingeborg Grässle, has demanded that Kessler resign over the phone allegations.

Belgian prosecutors first approached the Commission about their Dalligate investigation in December 2014, but the Commission turned down their request to lift immunity because it was considered poorly worded.

Kessler cannot be forced to speak to Belgian authorities with his immunity in place.

The Belgian prosecutors’ second request, in July 2015, prompted the Commission to refer the matter to its internal legal service.

That request demanded the lifting of Kessler’s immunity along with the immunity of the four OLAF investigators who had signed off on the original report into the conduct of Dalli, which was leaked to Maltese media in 2013.

In mid-2015, senior sources said the Commission’s legal service recommended that Kessler’s immunity remain in place, fearing the prosecution of a director-general by national authorities could open the floodgates for similar requests from anyone aggrieved by a Commission decision.

On July 22, 2015, the College had been set to vote on the recommendation to keep Kessler’s immunity in place. However, according to Commission sources, shortly before the vote the Belgian prosecutor submitted a third, more detailed request for the lifting of Kessler’s immunity.

This time, the Belgians narrowed the scope of their investigation and requested the lifting of Kessler’s immunity. While the prosecutors had previously wanted to examine a number of aspects of the Dalligate investigation, they had now focused on the allegation that Kessler had listened in on a phone call made by a witness.

The allegation first surfaced in the 2012 report by OLAF’s supervisory committee, the anti-fraud office’s in-house supervisor with which Kessler has had a notoriously testy relationship.

Meanwhile, OLAF said it has never been contacted by Belgian prosecutors on the immunity matter.

“We have never been informed of any request of the Belgian authorities,” OLAF’s acting spokesperson Silvana Enculescu said, adding the agency only found out about the immunity issue in a May 2015 report by Britain’s Sunday Times.

“The Director-General continues to carry out his work in an independent manner, as per his mandate,” Enculescu said.

Potential Commission embarrassment

The attempt to have Kessler’s immunity lifted is part of a renewed push by Belgian prosecutors who are working on a file which began as a defamation case in 2012 unrelated to OLAF but has since turned its focus on Kessler. 

Documents seen by POLITICO confirm Belgian federal police conducted new interviews into the matter late last year, and that police have now handed the file back to a Belgian prosecutor.

The reason for the renewed interest in the tobacco lobbying scandal is unclear, but the revival of the probe threatens to embarrass the European Commission, which made reform of its lobbying rules a top priority after the 2012 affair.

The Dalligate scandal erupted after it was discovered that Dalli had met with tobacco industry lobbyists in a café in Malta in violation of Commission rules, under which the encounter should have been internally disclosed.

The scandal also included allegations that a political associate of Dalli had attempted to solicit a bribe from a Swedish tobacco company in exchange for favorable treatment as the Commission was considering tobacco policy reform.

These allegations, which were strongly denied by Dalli, eventually prompted the Commission to dismiss the commissioner.

Belgian authorities are looking into Dalli’s claims that OLAF’s original investigation into the affair was politically motivated and poorly executed — claims which have since been repeated by OLAF’s supervisory committee and MEPs hostile to Kessler.

The OLAF report contained no evidence of a direct link between Dalli and the alleged attempt to solicit a bribe by his political associate. Dalli has used the absence of a smoking gun to suggest the Commission had been wrong to fire him on the strength of the OLAF report.

However, Dalli’s subsequent legal action in EU courts that maintained that his dismissal had been unlawful failed last year. Dalli has appealed that ruling, which is unrelated to the legal action taken by Belgian prosecutors.

The Dalligate affair, along with subsequent revelations of undisclosed contact between Commission officials and tobacco lobbyists, sparked a debate over the influence of the tobacco industry at a time when the Commission was formulating legislation.

Two months after his 2012 dismissal, Dalli lodged a defamation lawsuit in a Belgian court against the Swedish tobacco company which had reported him, and the alleged attempt to solicit a bribe, to the European Commission.

Sources with direct knowledge of the defamation probe said Belgian investigators reached a dead-end, following interviews with some witnesses in 2013.

Documents obtained by POLITICO show that on December 30, 2013, Dalli reaffirmed to Belgian prosecutors his initial defamation lawsuit but asked that it be expanded to include Dalli’s concerns about aspects of the OLAF investigation. Dalli asked the Belgians to examine allegations Kessler had broken Belgian laws by monitoring a private phone call. 

By the beginning of 2014 the investigation was back on track, although by then Belgian prosecutors appeared to have lost interest in the defamation allegations.

Legal sources say witnesses for the Swedish tobacco company, who had made themselves available to be questioned by Belgian police, have not been interviewed.