Johan Denolf, Chairman of the Supervisory Committee of the anti-fraud body, OLAF, has written to MEP Michael Theurer (ALDE), Chairman of the Committee of Budgetary Control (CONT) of the European Parliament, where he questioned the legality of the procedure followed in the OLAF report which formed the justification by which President Jose Barroso dismissed Commissioner John Dalli on October 16, 2012.
New Europe Online reports (http://www.neurope.eu/article/dalligate-olaf-s-chief-supervisor-denolf-says-dalli-report-did-not-follow-procedure ) that besides the violation of the principle of proportionality, where the investigation on Dalli should not have been opened at all, there were several other violations making the report obsolete.
Mr Denolf wrote:
Dear Mr. Theurer,
"In response to your letter dated 29.11.2012, the OLAF Supervisory Committee informs you that it has thoroughly examined the case concerning, inter alia, Mr Dalli, in order to assess whether the investigation was conducted properly and, in particular, whether the investigative independence of OLAF as well as the fundamental rights and procedural guarantees of the persons concerned, were respected. The Supervisory Committee has adopted today an opinion on that subject which will be sent to the Director General of OLAF.
In view of the legal obligations imposed on the Supervisory Committee by Article 8 of Regulation No 1073/99 to respect the confidentiality of the investigation, the Supervisory Committee is not in a position to submit this opinion or its conclusions to the Committee on Budgetary Control, since this would reveal elements of the investigation.
The Supervisory Committee has carried out an analysis with regard to the opening of the investigation (respect of the principle of proportionality), the conduct of the investigation (respect of the principle of legality, the principle of impartiality, the respect of fundamental rights and procedural guarantees, respect of personal data protection requirements) and to the closing of OLAF's investigation.
In carrying out this analysis the Supervisory Committee has discovered a number of potential problems and issued recommendations to the Director General of OLAF in that regard which require a discussion with him on a more systemic level about the ways in which OLAF is conducting its investigations.
The Supervisory Committee points out as well that OLAF's final report was transmitted to the Maltese national judicial authorities before expiry of the period of five days foreseen for the Committee. This prevented the Supervisory Committee from carrying out the examination of the respect of fundamental rights and procedural guarantees in OLAF's investigation prior to the said transmission. According to the judgement of the General Court in Case T-48/05, the Supervisory Committee must be consulted prior to such transmission for the sake of the protection of fundamental rights."