Momentum is building in the European Parliament’s largest political group to lobby for the removal of the EU’s anti-fraud agency chief over his handling of the investigation that led to John Dalli’s forced resignation as EU Health Commissioner.
Discussions have taken place over the past week between high ranking members of the European People’s Party and the European Commission presidency about the future of agency chief, Giovanni Kessler, sources told The Sunday Times of Malta.
A well placed source in the EP said: “It’s a bit dicey at the moment but this week could prove to be Mr Kessler’s undoing”.
Mr Kessler came under intense fire over the last months following claims of irregularities in the Dalli investigation.
The former health commissioner resigned in October after OLAF concluded circumstantial evidence showed he knew about a bribe request by his former canvasser but did nothing about it. He has consistently challenged this position.
The agency’s own watchdog questioned the legality of some of OLAF’s actions in a detailed opinion that was leaked to the Maltese press two weeks ago by Green MEPs Bart Staes and José Bové.
OLAF responded to the claims defending its position in public and internally in a legal note being published today for the first time.
However, on Wednesday, Mr Kessler is expected to face an EP grilling, where the Budget Committee prepared a document with no less than 140 questions on the case.
Inge Graessle, a German member from the committee, who has been leading the charge against the OLAF chief, played down the idea that there was a special development.
“I feel it would be a catastrophe for the Commission and Mr Barroso (who is from the EPP) if Mr Kessler is not suspended or made to resign but I don’t know if I can speak of any particular development,” she said, insisting that the Commission should call a legal inquiry into the investigation.
However, sources told this newspaper a formal agreement was reached within the EPP to back Dr Graessle’s demand for his resignation and the negotiations with the Commission Presidency concerned precisely this point.
On the other side of the fence, Commission sources expressed concern that the entire story was becoming fudged in public discussions both in Malta and Brussels.
“A clear distinction should be made between the process and the facts of the matter,” a Commission source said.
“If there were any irregularities in the investigation they should be dealt with but it does detract from the central issue which has led to court proceedings against at least one suspect.”
So far only 48-year-old Silvio Zammit has been arraigned. He is pleading not guilty to charges of trading influence and bribery for allegedly asking tobacco company Swedish Match for €60 million in return for lifting an EU wide ban on snus, a form of tobacco that is consumed orally and which can only be sold in Sweden.
However, a spokesman for Commission President Jose Manuel Barroso said: “Mr Barroso’s position on the reasons leading to Mr Dalli resignation – the conclusions of the OLAF report made the former Commissioner’s position politically untenable – has not changed.”
Maltese authorities should answer for phone records
It was up to Maltese authorities to verify whether it was legal for them to obtain and hand over the phone records of Maltese suspects in the Dalligate probe, according to a legal note by the EU’s anti-fraud agency.
OLAF made the argument in an 11-page legal note –The Sunday Times of Malta has a copy – in which it defended itself after its watchdog questioned the legality of its actions in the investigation involving Mr Dalli.
The watchdog had questioned whether OLAF had the legal right to obtain the phone records of Mr Dalli’s former canvasser during the investigation.
These phone records and those of Mr Dalli – which the agency had a right to access seeing he was a functionary of an institution – provided the central piece of evidence that OLAF presented against the former Commissioner as they showed that some phone calls between the two coincided with moments where Mr Zammit allegedly asked for money.
But on the legality of its request for Mr Zammit’s phone records, OLAF said in its legal note that “it is the responsibility of national authorities to decide whether their national laws allow them to provide OLAF with the requested information”.
The Maltese authority in question is the Anti-Fraud Coordination Service (AFCOS) – local liaison for OLAF in each member state – which at the time was run by Rita Schembri, who is now under investigation after allegations were made that she abused her position in another matter.
OLAF also rejected the Supervisory Committee’s claims it may have breached Belgian law when it instructed snus lobbyist Inge Delfosse, to record a conversation she had with Mr Zammit in the presence of OLAF investigators.
OLAF cited two court cases but essentially argued that because there was Ms Delfosse’s consent and because the recorded conversation was not used, the agency had broken no law.
The agency also claims that the Supervisory Committee has no business scrutinising individual investigations, adding that the committee “never issued an opinion of this nature” (on one specific case) in its 13 years of existence.
“The committee has acted ultra vires (beyond its remit) in issuing this opinion,” the document states in reaction to a damning opinion by the committee which questioned the legality of some of OLAF’s actions in respect to the Dalli investigation.
Ironically, the watchdog had also accused OLAF of potentially acting beyond its remit in certain parts of the Dalligate probe.
The line reflects comments made publicly by Mr Kessler when he said that the proper channel to challenge the actions of the agency was through the courts.
mmicallef@timesofmalta.com