A case for unfair dismissal filed by former EU Health Commissioner John Dalli against Commission president Jose’ Manuel Barroso continues this afternoon, when lawyers for the two sides make their final pleas.

A five-hour sitting yesterday saw Mr Barroso insist that it was impossible for Mr Dalli to remain in his position as European Commissioner given the political situation he was in.

The hearing was the latest round in what has been played up by supporters and foes of both sides as a highlight of the Dalli versus Barroso saga, which has been going on ever since Mr Dalli resigned from the European Commission on October 12, 2012.

The former PN minister stepped down after the EU anti-fraud agency (OLAF) concluded there was “unambiguous circumstantial evidence” indicating he was aware that his former associate, Silvio Zammit, had asked tobacco firm Swedish Match for a bribe to alter EU tobacco legislation.

Mr Dalli has vehemently denied any wrongdoing and throughout the past two years has instead accused the investigating agency, and especially its head Giovanni Kessler, of producing a “fraudulent” investigation which simply had the goal of giving the Commission President an excuse to “terminate” him.

He uses the term fraudulent purposefully, to liken what happened to him in 2012 with his situation in 2004, when former private investigator Joe Zahra fabricated an investigative report claiming Mr Dalli had taken kickbacks. Mr Zahra was eventually jailed.

From a legal standpoint, however, yesterday’s case had little to do with this wider conspiracy. The case essentially concerns a claim of unfair dismissal filed by Mr Dalli against the Commission.

He is arguing that he did not resign of his own volition but rather was forced by circumstances to step down – principally by the fact that in the crucial meeting with Mr Barroso of October 16, 2012, he was only given half an hour to choose whether to step down or be sacked rather than the 24 hours he asked for.

Virtually all of the questions that came from the panel of five judges hearing the case yesterday concerned details that could help shed more light on the claims of either side.

At one point, one of the judges, Nicholas James Forwood, confronted Mr Dalli with a transcript from an interview that he gave PBS’s afternoon show TV Hemm on the same day of his resignation.

The judge pointed out that at one point, when asked whether he had stepped down voluntarily, Mr Dalli said: “I do not stay where I am not wanted.”

“It seems that you were at the time unwilling to say you were forced to resign which is what you are saying now,” Judge Forwood said.

On the witness stand, Mr Dalli, who was appeared parched and out of breath at times, insisted that Mr Barroso was so forceful that he really had no option.

“The bottom line was that I would finish in disgrace and that my integrity would be totally trodden upon. These were not options, these were excuses,” he said, underlining that he was not given the report in order to be able to see for himself the evidence there was against him.

The same judge questioned Mr Barroso right after he claimed that when he walked into the now infamous meeting, he still harboured hope that Mr Dalli might somehow convince him that he could stay on.

But the judge asked: “If he did not have access to this (the full OLAF investigation report) how did you expect him to come up with a convincing reply?”
Mr Barroso replied by insisting on the main point he made in his evidence, which was to emphasise that Mr Dalli had to justify his position or step down for political reasons not legal ones.

“This was not a legal process. It was a political meeting... I was expecting him to say this is completely false. I don’t know this Mr Zammit. On the contrary, he confirmed that this bar person (Mr Zammit owns Peppi’s Kiosk in Sliema) was brokering meetings about the Tobacco Products Directive,” he said.

“I couldn’t believe it. What was this thing? In fact he agreed that it was inappropriate,” he said. “By the end of that meeting I had completely lost confidence in him.”

In the few statements after Mr Dalli’s resignation, Brussels always emphasised that his position was politically untenable, even though he was presumed innocent.

Mr Barroso’s former head of cabinet, Johannes Laitenberger, and the head of the legal services Romero Requena, further propped up the argument in their testimony yesterday.

At one point, one of the Mr Dalli’s lawyers picked this up and suggested that today, in the final hearing, she might object to the admissibility of these people’s testimony simply because they are still Commission staff and therefore under Mr Barroso’s command.

She even questioned, along these lines, Joanna Darmanin, Mr Dalli’s chief of cabinet, who was not at the meeting between the two men and had no knowledge of the investigation.

“How did you prepare for this hearing,” she asked. “Well, when I received the summons from the court I sat down and started going through my memories and cross checking...” she replied.

It is not known when the court will deliver its verdict, although it could be several months.

Follow today’s sitting on the timesofmalta.com live blog at 1.30pm.

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