John Dalli’s case against José Manuel Barroso, as I write this, isn’t yet over. By Monday evening, however, enough had emerged from the proceedings to show that what Barroso considers salient to the case has, up till now, hardly ever been given the same importance in Maltese reportage.

Barroso has declared Dalli’s behaviour – in meeting lobbyists so informally in Malta – was “bizarre”. And this, really, is the neglected crux of the case. If, in mainstream Europe, that kind of behaviour is considered bizarre for a European commissioner, then Dalli’s case for unfair dismissal collapses.

In Malta, the case was dominated by another issue: whether Dalli really had tried to ask for a bribe. The reporting was on whether the OLAF head, Giovanni Kessler, had really unearthed enough evidence to make that allegation plausible and whether, in Kessler’s zeal to pursue the case, he had violated Dalli’s legal rights.

It’s not that this angle is unimportant. How can it be, when one police commissioner thought there was enough evidence to proceed with a court case only for his successor to decide that there was not? But the exclusive focus on this angle misses that there were, always, two different sets of accusations against Dalli.

One was whether he had broken the law, which would be settled by a court case. The other was whether he had broken the code of conduct for commissioners, which could be settled by the president of the European Commission, Barroso.

The first is a legal issue. The other, as Barroso emphasised, is a political one.

The legal issues do have to do with Dalli’s rights: the right to presumption of innocence; the right to due process, which involves the legality of the investigation as well as the proper conduct of court proceedings.

The political issues, however, have to do with Dalli’s duties, not his rights. A commissioner, like a judge, has a duty to meet people only in very controlled conditions: with a register of appointments and staff in attendance to witness and take a record of the discussions.

Not to do so jeopardises the work of the Commission. Even if entirely innocent and naive, Dalli’s informal meetings with people who turned out to be lobbyists (or their proxies) raised grave questions about the work of the Commission; indeed, about his own work.

Ulterior motive doesn’t matter. Foolishness is enough

Once the news of these meetings leaked, the tobacco directive would always have been under a cloud. It is true that, as OLAF itself reported, the content of the directive was not affected. However, while this fact is relevant for a court case on bribery charges, it is not relevant to the political issue.

Two factors are important here.

First, it is not uncommon for a directive to leave a commissioner’s office in one state, only to have important parts of it negotiated and changed by the time it’s approved. A commissioner’s willingness to give and take at this stage is crucial.

This time, though, had this perfectly normal process taken place, any decision taken by Dalli, no matter how reasonable, would have been subject to suspicion of ulterior motives.

Second, even if the directive had been approved unchanged, there would still have been grounds for suspicion. Remember, the talk about the bribe was that the discussions fell through because the asking price was too high. An unchanged directive would have laboured under this gossip, which would have surely floated, like odourless gas, through the corridors of Brussels and beyond.

Even if such talk was mere fantasy, its effects on the work of the entire Commission would have been real. The health commission itself would have been greatly undermined in any future arm-wrestling with lobbyists since its authority to speak in the name of a European common good would have been eroded.

Barroso found Dalli guilty of political irresponsibility, not criminal action. He did so on the basis of what Dalli has admitted and continues to acknowledge: that he did have meetings in Malta with lobbyists. Ulterior motive here doesn’t matter. Foolishness is enough.

Therefore, if anyone wishes to challenge Barroso’s right to decide Dalli had to go, they need to challenge not the evidence – since Barroso relied on what is undisputed – but Barroso’s analysis of the consequences, for the Commission, of the meetings that Dalli had.

One has to show that Europeans, generally, would not have minded. That the work could have gone on without much disturbance. Essentially, one would need to show that such behaviour is not ‘bizarre’ for Europeans.

Soon after his departure from the Commission, Dalli claimed that OLAF, in tracking his various meetings in Malta, had failed to make allowances for Maltese political culture, where contacts with politicians are more informal. (Indeed, there was also a subtext that Kessler was misapprehending Malta as another Sicily.)

This argument might be relevant to the bribery accusations. But it’s irrelevant for the accusation of bizarre behaviour. What counts here is whether the behaviour endangered work in Brussels. It’s the public culture of mainstream Europe that commissioners are duty-bound to respect.

The press attention that Dalli’s reported behaviour has acquired internationally suggests that Barroso is not alone in considering it bizarre.

Even if Dalli is right, and sections of the international press are knowing or unwitting pawns in a dark conspiracy of powerful forces against him, the fact is that they are latching onto this behaviour to tarnish Dalli’s reputation.

Which is exactly why Barroso said Dalli’s position was untenable. Even if he was completely innocent, he had behaved in a way that could lead to him and his Commission’s work to be tarnished.

ranierfsadni@europe.com