Were you confused by the legal wrangling during the Dalli vs Barroso hearings in Luxembourg last week? You’re not alone, as even the judges seemed frustrated by some of the lawyers’ ‘nuances’. Mark Micallef breaks down the more salient blows.

1. Was he pushed or did he jump?

The case before the European Court of Justice essentially concerns the issue of unfair dismissal, but the action is complicated because the European Commission disputes the very foundation of Mr Dalli’s claim: the idea that he was sacked.

Essentially, if the judges are not convinced he was sacked, the whole case falls flat, irrespective of the other arguments.

The former European commissioner officially resigned with the publication of a statement issued by the European Commission on October 16, 2012, at around 5pm.

Before it was issued, Mr Dalli had a 90-minute meeting with Commission President José Manuel Barroso in which the two discussed the conclusions of a report by the EU anti-fraud agency (OLAF).

The report, which was not made available to Mr Dalli, claimed he had a number of irregular meetings (there were two) with the tobacco lobby that had been brokered by his friend and former canvasser Silvio Zammit.

More significantly, it claimed there was “circumstantial evidence” indicating he knew a bribe request from a tobacco lobby had been made in his name by Mr Zammit but did nothing about it.

2. Why does John Dalli say he was sacked?

Mr Dalli claimed in court that he was “ambushed” during the October 16 meeting. According to him, his former boss entered the meeting determined to “terminate” (both he and his lawyers repeatedly used this word) him.

The claim, which plays into his wider conspiracy theory, argued extensively over the past two years, that the whole OLAF investigation was part of a plot by Mr Barroso, in tandem with the tobacco industry, to get rid of him and pave the way for more lenient laws for the industry.

Lawyers emphasised that Mr Dalli was effectively given no choice but to resign

The lawyers emphasised that Mr Dalli was effectively given no choice, since he was told by Mr Barroso that he would be sacked if he did not resign.

They also claimed Mr Barroso was not competent to fire Mr Dalli since the OLAF report, upon which he based his decision, was riddled with irregularities and was premised on “conjecture” rather than hard evidence.

The investigation has been severely criticised by the agency’s watchdog over several irregularities, particularly in relation to the manner in which some of the evidence was collected.

Moreover, after the report was published many commented that the investigation had serious holes and lacked conclusive evidence against Mr Dalli with regard to the claim he knew about the bribe.

The principal evidence is a series of phone logs between Mr Dalli and Mr Zammit made at crucial moments (sometimes back-to-back) with the alleged bribe requests.

The meetings are uncontested but Mr Dalli insists they were innocuous.

Moreover, only last month the European Ombudsman initiated an investigation into other commissioners for allegedly having similar unregistered meetings.

3. Why does the Commission insist he resigned?

The Commission’s counter argument is premised on two main points: the first is that Mr Dalli had clearly resigned and the second is that any possible problems with the investigation are irrelevant because his resignation was premised on political, not legal, considerations.

Mr Barroso reiterated in court that he was prepared to sack Mr Dalli had he not resigned.

But since the former commissioner did not force him to do so, he had stepped down voluntarily.

Some witnesses also supported this claim by saying Mr Dalli had said, both during and after the meeting between the two, he had stepped down because “he wanted a free hand to be able to clear his name”.

Mr Barroso’s top aid, Johannes Laitenberger, and legal services chief, Luis Romero Requena (who were present at the end of the meeting), also corroborated the Commission president in saying the statement issued later in the afternoon (and which contained a line to the effect that he was stepping down to clear his name) was read out to Mr Dalli.

Mr Barroso laid out his second argument, about the political nature of Mr Dalli’s resignation, by pointing to a case in Portugal in which a politician had resigned in similar circumstances while vehemently denying the allegations brought against him.

Eventually he cleared his name and made a successful comeback.

Previous case saw a politician resign, clear his name and make a comeback

The doubts cast by Mr Dalli would have hounded him had he stayed in office, and would have made it impossible for him to keep overseeing such a sensitive process as the review of the Tobacco Products Directive, Mr Barroso insisted.

Both for his own sake and of the Commission, he had to go.

4. Nothing to show for the resignation

Should Mr Dalli’s first plea, that he was sacked, pass the test, the judges will also have to be convinced the move was unlawful, because Mr Barroso is specifically empowered to remove a commissioner at will under article 17.6 of the EU treaty. The relevant part states: “A member of the Commission shall resign if the President so requests.”

5. Nothing in writing

One of the basic technical arguments made by Mr Dalli’s defence team in this respect is that Commission has nothing to show in writing for Mr Dalli’s resignation.

They cite the principle of legal certainty. In other words, if the court accepts that Mr Barroso exercised his powers at law, the defence team is arguing that he did not apply these powers lawfully.

First of all, the Commission never stated in its communications that Mr Barroso was exercising his powers under the treaty.

Secondly, Mr Dalli did not submit a written resignation letter.

A lot of time was spent in court talking about this resignation letter. In his testimony, Mr Dalli said that towards the end of the meeting – in which, he said he was constantly “fighting” Mr Barroso’s “wrong decision” – he asked for the reasons for his resignation to be put in writing.

A letter was drafted for him but he did not sign it because he felt it did not represent what was really said at the meeting.

6. No need for a written resignation

At the other end of the courtroom, the lawyers insisted no resignation letter was needed at law.

Moreover, Mr Dalli’s position was also contrasted by the evidence given by Mr Laitenberger and especially the Commission’s top legal official, Mr Romero Requena.

Both men corroborated a point made by Mr Barroso that it was Mr Dalli who asked for the resignation letter to be drafted so he could amplify the reasons for his resignation in it.

Mr Romero Requena said he drafted the letter, took it to Mr Dalli and left it on his desk. He asked if he wanted a digital copy but Mr Dalli said there would be no need and that he would handle it from there.

The letter was never signed but it emerged in court that Mr Dalli had gone through it and crossed out a few lines he disagreed with before deciding not to sign it. Judge Nicholas James Forwood was particularly probing on this point, asking why Mr Dalli had crossed some lines in the letter but then failed to cross the very first one, which stated he would step down with immediate effect.

Mr Dalli’s lawyer Stefano Rodriguez had to go back and forth a few times, each time consulting Mr Dalli, because the judge was not happy with the answers.

Eventually, he settled for a statement from the lawyer that Mr Dalli’s failure to cross that line could not be interpreted as him accepting its content. He had not signed the letter and therefore rejected its entire contents.

7. No right to a defence

Another point that attracted a lot of attention was Mr Dalli’s argument he was not given the opportunity to defend himself, both in the OLAF investigation process and especially during the meeting with Mr Barroso.

8. The die was cast before the meeting

The main argument put forward by Mr Dalli and his team was that Mr Barroso had premeditated his departure well before the October 16 meeting and that on the day, he was invited over as a mere formality.

He described walking into the meeting unaware what the two would be discussing.

According to his version of events, Mr Barroso stated the outcome at the outset (that he should go) and then stood there impatiently as Mr Dalli fought for 90 minutes to convince him his decision was wrong.

Eventually, Mr Dalli’s focus changed and he asked for more time, at least enough to be able to consult family and his lawyers.

“I asked for 24 hours. He simply looked disdainfully at his watch and said ‘you have 30 minutes’,” Mr Dalli said.

This excessive haste, Mr Dalli’s lawyers argued, placed undue and unjust pressure on the former commissioner in such a way he could not make his decision freely.

More generally, in the final plea, Mr Dalli’s defence team highlighted three elements that undermined their client’s right to be heard.

First, that he was not properly heard during the OLAF investigation, second, that he was not given the opportunity to explain his position to Mr Barroso and, third, that he was not given the opportunity to contest his resignation in an administrative tribunal.

9. Dalli should have seen this coming

The Commission counter-argued that Mr Dalli had been given ample time to state his position.

He had two meetings with OLAF during their investigation – which the Commission, in any case, does not regard as its responsibility, seeing as the agency is independent.

Mr Barroso underlined that he had already met Mr Dalli about the allegations

Moreover, Mr Barroso underlined he too had already met Mr Dalli about the allegations on July 25.

The former commissioner promised he would take legal action against the people putting him in this position but never got back to him on that.

Given the serious nature of the claims, Mr Barroso argued that Mr Dalli should have seen it coming, clearly indicating he did not think much of the claim that Mr Dalli felt he was ambushed.

Moreover, he pointed out that Mr Dalli was a “very experienced politician” who, unlike him, had never been in this position before.

He did not deny insisting on a decision within half an hour towards the end of the meeting because, he claimed, Mr Dalli’s arguments had become “circular”.

Mr Barroso said the former commissioner had accepted he needed to go but kept going back to the issue of time and therefore he felt he needed to put an end to that.

The Commission explained the urgency by referring to a concern there could be a leak to the press.

However, towards the end of the hearing, the Dalli team sought to undermine this claim by pointing out the Commission had informed several people (including Swedish Match, the tobacco firm that lodged the complaint) that the OLAF report had been concluded.

“Why do this, if you are so concerned about a leak,” Mr Dalli’s lawyer, Laure Levi pointed out.

10. The war of words inside the courtroom

Mr Dalli: “The bottom line was that I would finish from the Commission in disgrace and my integrity would be totally trodden upon.”

Mr Barroso: “Why has Mr Dalli changed his position? And why come up with so many conspiracy theories later? I would like to take the opportunity to say that they are entirely baseless.”

Joanna Darmanin (Mr Dalli’s former chief of Cabinet “I saw (John) Dalli and he told me we ‘have a problem, I need to contact my wife. I need to see about my rights, my allowances and whether I have a pension’.”