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25th Jul 2021

Olaf leak questions legal basis of Dalli probe

  • Former EU health commissioner Dalli lost his job over bribery allegations (Photo: ec.europa.eu)

A leaked report on the EU's anti-fraud office (Olaf) questions the legal basis of the investigation that led to former Maltese health commissioner John Dalli losing his job.

"It clearly describes in 22 or 23 pages what kind of mistakes and illegal actions were undertaken by Olaf,” Belgian Green MEP Bart Staes told this website on Tuesday (7 May).

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Staes, who is in Malta along with French Green MEP Jose Bove, handed a copy of the leaked report to the office of Malta’s Prime Minister.

"I think it ruins the Olaf investigation, it shows clearly that the fundamental rights of the accused have not been guaranteed, that the telephone records were not gathered on the right legal basis,” said Staes.

The report was written by a member of a supervisory committee, composed of five independent outside experts, tasked to oversee that Olaf conducts its investigations appropriately.

To maintain its independence, Olaf is banned from taking or seeking instruction from any government, institution, body or agency in the performance of its duties.

But the speed at which the Dalli investigation was launched and the close proximity of people inside the commission to the file has led to suggestions that Olaf’s independence from the European Commission may have been compromised.

“The supervisory committee would like to point out that the need for a measured assessment was important for the safeguarding and consolidating of Olaf’s independence vis-a-vis the European Commission when this latter is the origin of the referral,” the report states.

The commission’s legal services had recommended launching the investigation after its secretary general, Catherine Day, received bribery allegations against Dalli made by tobacco firm Swedish Match.

Commission chief Jose Manuel Barroso urged Olaf to give the probe top priority, even though Olaf had initially instructed Day not to inform him.

An investigative selection and review unit in Olaf was given less than 24 hours to properly assess the allegations after receiving a letter from the commission on the case on 24 May 2012.

The unit delivered a positive verdict a day later and said “the information provided was sufficient to open an investigation.”

On 25 May, the head of Olaf Gionanni Kessler hand-delivered the opinion to launch the investigation to Day.

Olaf is required to verify the credibility of accusations before launching an investigation.

But the leaked report, in its analysis, says the supervisory committee had not “found any trace of any other check made or any other additional information gathered by Olaf with regard to the allegations and their credibility.”

Olaf had only verified the existence of persons and companies in the complaint.

After four months of inquiry, Kessler handed the final report over to Barroso on 15 October, who called in Dalli for a crunch meeting one day later (Barroso says Dalli quit, but Dalli says he got the sack).

The supervisory committee was also unable to assess the quality of Olaf’s case before the final report was sent off to the Maltese authorities, which launched a criminal case.

The committee is supposed to have at least five days to scrutinise Olaf’s work.

Staes says Barroso should have asked Kessler on 15 October if Olaf had first consulted the supervisory committee to make sure procedures and fundamental rights were properly followed.

Had the supervisory committee been consulted then “Dalli would never have been asked to resign in the way it happened on 16 October,” said Staes.

Both Staes and Bove have been looking into how Olaf operated.

Staes says they have information on a number of people inside the commission that have themselves met with tobacco industry lobbyists in contravention of the same rules that saw Dalli go.

“We do know that people surrounding Barroso, his cabinet, of the legal service, of the secretary general of the commission, that they also met people in the tobacco lobby,” he said.

“Why can you blame a commissioner and force him to resign on the one hand and not take actions on others who do the same?” he added.

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