Stefano Rodriguez, one of the lawyers representing former EU Commissioner John Dalli argued that his resignation is not in line with what is set out in the European Treaties. Mr Dalli never voluntarily agreed to resign or signed a resignation letter.

The lawyer insisted that the burden of proof is on EU Commission President Jose Barroso. Mr Barroso should have obtained a clear and unconditional resignation from Mr Dalli, the lawyers insisted. 

The fact that Mr Dalli was not given access to the Olaf report or 24 hours to consult with his lawyers and draft a resignation letter goes against the concept in employment law stating “clear and unconditional” consent must be given for a valid resignation. 

The lawyer has latched on to the testimony given by the Commission head of legal services yesterday. The lawyer said it makes no sense that Mr Dalli would have asked his employers to write-up a resignation letter for him stating the reasons behind the resignation. 

Mr Dalli was presented with a fait accompli during the meeting with Mr Barroso on 16 October 2012, as the EU Commission President had already made up his mind and the relevant press statements already prepared, the lawyer said. This is why Mr Dalli said he felt that he was sacked during yesterday proceedings, the lawyer said.

Another of Mr Dalli’s lawyers, Laure Levi, said that although Mr Dalli’s was in a political position of trust, it does not mean that the termination is not subject to review. Ms Levi said the claims in the Olaf report were taken as a given, and were not subject to review. 

The lawyer said Mr Dalli was not expecting his employer, Mr Barroso, to carry out a separate inquiry. Rather, there should have been an attempt to verify the facts. The investigation had not even been vetted by Olaf watchdog, she said. 

Once the investigation was reviewed by the watchdog, it was found that Mr Dalli had not been properly heard out during the investigation, which breached his human rights.  

Mr Dalli’s lawyer accused the Commission of changing its version of events. First the Commission said there were two options on the table, either Mr Dalli’s resignation or his sacking, for which two press releases were prepared.

Mr Barroso then said that he approached the meeting with Mr Dalli with an open mind in the hope that Mr Dalli would convince him to keep him on. If this option was really on the table, why was no press release prepared, the lawyer questioned. 

Barroso’s lawyers

One of the lawyers representing Mr Barroso rebutted insinuations that the testimonies given by two witnesses, Johannes Laitenberger (Barroso's chief of staff) and Luis Romero Requena (head of legal services) were prepared in collusion. The testimonies were prepared separately from their own notes, the lawyer said. 

Johannes Laitenberger

The burden of proof of unfair dismissal lies with Mr Dalli, the lawyer said. Mr Dalli was invited to give an explanation to the Olaf findings but failed to do so. He was then presented with two choices, either to resign or be sacked. Mr Dalli chose to resign, the lawyer said. 

Many political resignations take place under pressure, but this does not mean they are not valid, the lawyer said. The lawyer accused Mr Dalli of wanting to have his cake and eat it. Mr Dalli was given a choice, resign or be sacked. 

Mr Dalli was not a civil servant, he is an experienced politician who already faced a similar scenario in Malta, the lawyer said.

Mr Dalli did have a fair hearing. He had two meetings with Olaf and two meetings with Mr Barroso. After the meeting with Mr Barroso, Mr Dalli informed his staff that he had resigned in order to defend his name and return to Malta, the lawyer said. 

The lawyer said the Court only has authority to intervene if the Commission President acted beyond his power. This was not the case, as Mr Barroso was well within his rights to dismiss Mr Dalli but did not do so because Mr Dalli resigned. 

Lawyers field questions from Judges 

The lawyers are now fielding questions from the Judge. Judge Nicholas James Forwood asked about the “third option” of Mr Dalli staying on if he explained his position sufficiently.

The EC lawyer said the Commission did not change its position in articulating this third option (as previously there were said to be two options either resign or be sacked). Rather, it was simply clarifying events. 

Mr Dalli's lawyer insists the Commission did change its version of events. 

Judge Forwood asked if Mr Dalli ever believed during the meeting that Mr Barroso would have kept him on. Mr Dalli’s lawyers replied that the decision had already been made by Mr Barroso. 

Mr Dalli’s lawyers said the choice presented to their client during the meeting was either to resign or be forced to resign. No explanation was given as to the “game” being played and the “rules” being applied. His legal position was not explained to him. 

Judge Forwood pointed out that Mr Dalli appears to have crossed out certain parts of the resignation letter. The judge asked why Mr Dalli did not cross out the crucial sentence, “I resign with immediate effect.”

In reply, Mr Dalli’s lawyer said his client did not agree with the letter and did not sign it. 

Background

The lawyers representing former EU Commissioner John Dalli and outgoing EU Commission President Jose Barroso will present their final arguments today in a hearing starting this afternoon.

A final decision is expected to be handed down within six to nine months.

Mr Dalli instituted the case against the EU President on the claim that he was unfairly dismissed. He is seeking symbolic damages of one euro for the damage done to his reputation.

Yesterday saw a marathon five hour hearing, with the main witnesses Mr Dalli and Mr Barroso arguing over the process leading to Mr Dalli’s resignation.

Mr Barroso said the resignation was not governed by labour law, as top officials are held to political account and the need for Mr Dalli’s resignation was a political decision.

Mr Dalli argued that he was put under intense pressure to resign, and was not even allowed access to the Olaf report alleging shady meetings s with the tobacco lobby.

 Mr Barroso confronted Mr Dalli with the findings during the meeting October 2012 meeting, but refused to show him the report.

Mr Dalli did admit that two meetings held with people associated with the tobacco lobby were “inappropriate.”

Mr Dalli argued that his resignation was not voluntary, as being a politician he could not stay on in the post if he was not wanted. 

In his testimony, Mr Barroso insisted that Mr Dalli resignation was unambiguous and he did so of his own free will.

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