Luxembourg, 08/07/2014 (Agence Europe) - One came to defend his honour and the other to convince the Court that it was about protecting the institution in his charge. John Dalli, former European commissioner for health, and José Manuel Barroso, President of the European Commission, put their opposing opinions to the General Court of the EU in Luxembourg on Monday 7 July - opinions about an episode of barely a few hours which occurred on Tuesday 16 October 2012 and resulted in Dalli leaving his post in disgrace. The five European judges will have to determine who twisted the truth of the past. Did Dalli resign voluntarily, as Barroso and several other witnesses assert, or was he forced to do so - which then makes it a dismissal, as Dalli asserts? The General Court's assessment of this episode will only be made known in a few months' time.
The day of Tuesday 16 October 2012. The different evidence given to the General Court essentially concerned a few hours during the afternoon of 16 October 2012. There is currently agreement on a number of points. Barroso's private office organised a meeting between Barroso and Dalli at 1.45pm that day. Without being informed of the reason for the meeting beforehand, Dalli had to cancel his trip to Luxembourg where he was due to participate in a Council of the EU. As soon as his meeting with Barroso began, the tone was set - with Barroso simply saying: “Things are not looking good. We have a problem.”
This problem was nothing less than the conclusions of an investigation conducted by OLAF (the European Anti-Fraud Office) - an investigation into Dalli's alleged influence peddling at the time he was preparing for the review of the tobacco directive. Barroso told the Court that “very serious accusations had been made against Mr Dalli - accusations of improper contacts with the tobacco lobby and knowledge of attempted bribery”. According to Barroso, Dalli acknowledged that he had acted unwisely - which he also later admitted to his former head of private office, Joanna Darmanin (who was also called to give evidence in the case). Dalli has always protested his good faith, however, as well as the lack of any offence whatsoever, an exaggeration of the facts and a lack of any repercussion on the Commission's work. Yet for Barroso, the damage was done - “At that point it became definitely clear to me that politically it would be impossible for him to continue as a commissioner”. From this point onwards, assessment of the events began gradually to vary between the different witnesses.
Two draft press releases for three scenarios. Questioning the witnesses, Dalli's lawyers particularly insisted on one specific fact. The Commission had already prepared two draft press releases for the meeting between Dalli and Barroso on 16 October - one announcing a voluntary resignation of the commissioner and the other a formal request from the president. The two versions were sent to the press department before the beginning of the meeting. However, as Barroso stated, three scenarios were envisaged before calling Dalli for the meeting - Dalli defending himself and remaining in his post; his voluntary resignation; or his being asked to resign.
However, with regard to these circumstances, was the first of the scenarios really taken into consideration? Did Dalli at any time have the benefit of the presumption of innocence and the opportunity to defend himself in the face of the accusations? Dalli's lawyers doubt this for several reasons and this too also aroused the judges' curiosity. Firstly, according to Dalli's lawyers, Dalli would not have been able to exonerate himself because he did not have access to the details of the OLAF report - which furthermore only contains accusations but no assertions as to his guilt. Dalli's fundamental rights have been violated, his lawyers believe. In addition, the meeting with Barroso on 16 October was organised five days beforehand - although Dalli said he only had knowledge of a summary of the investigation's conclusions on 15 October.
The explanation put forward by Barroso took the form of a chronological summary of the facts. In May 2012, the Commission was informed that an investigation had been opened; on 25 July 2012, Barroso saw Dalli about this issue for the first time; “a few days”, before the second meeting - the one on 16 October - Barroso was succinctly informed that the conclusions of the investigation “were negative for us”; on 15 October, he received the summary of the conclusions. According to the Commission's lawyers, Dalli was able to defend himself because he knew that an investigation was being conducted by OLAF, and OLAF questioned him. He was therefore able to prepare for his defence. Yet for Dalli's lawyers, there were never three possible scenarios as it was two options that were presented on 16 October, in a confused way on the legal level, with a single result - Dalli having to leave the same day. This was refuted by the Commission's lawyers. No decision was taken in advance, they said. How could the Commission know in advance, in broad outlines, what the report was going to contain when organising the meeting between Dalli and Barroso. Because it was a sort of potential political “bomb”, said Romero Requena. Leaks and possible political damage have to be avoided, he said - especially with regard to the tumultuous relations experienced with OLAF. And in order to avoid such damage, a “political decision” had to be taken at this meeting, Barroso stressed.
Did Dalli have two options or none? Barroso asserted that, after “a long discussion on the pros and cons (…) I gave him a very clear choice between two alternatives” - in other words, resigning voluntarily “to exonerate his name”, or beginning a formal procedure of forced resignation (as provided for in the Lisbon Treaty, Article 17 Paragraph 6). In the end, it is on this point that the whole case hinges with its strands of evidence because Dalli denied having had such a choice, while Barroso says Dalli “resigned of his own will in my office on 16 October 2012 in an unambiguous manner”.
After the “amazement” Dalli felt at the accusations - which he was not able to see for himself as Barroso refused to show him the report or a summary of it because of the confidentiality clause - Dalli said he was in a state of shock and dumbfounded. He asked Barroso for a week, and then at least 24 hours, to prepare himself and obtain legal advice - but this extra time was refused to him. Why was there a need for such “urgency”, Dalli asked the General Court. “I could not give it because there could have been leaks and that would create irreparable damage to the institution”, Barroso replied. In such circumstances, everything seemed clear to Dalli - “there was absolutely no option. Whatever I say, the decision has been made”, he told the judges.
One word but two interpretations. The events that followed also create confusion, despite two further witnesses coming into play - Johannes Laitenberger, the head of Barroso's private office, and Luis Romero Requena, the director general of the Commission's legal department, who both went to Barroso's office at end of his 90 minute meeting with Dalli. Like Barroso, Laitenberger and Romero Requena told the General Court that Dalli told them that he had taken the decision to resign on his own initiative in order to defend his honour. They also said that Dalli was presented with the draft press release about his immediate and voluntary resignation. Barroso told the General Court that he was ready to ask Dalli formally to resign (Article 17) but that he did not do this as it was not necessary given that Dalli had made “the most honourable decision”.
Dalli claimed that he had only seen this press release later - after it had been sent out at 5.00pm. He also denied having used the term “resignation” during the meeting, but rather spoke of “sacked”, “lynching” and having been “forced to leave”. In this repeated ambiguity as to the use of terms, the Commission lawyers see inconsistency in Dalli's actions and his desire to go back on a decision to resign that he took himself. After the publication of the press release, which put an end to Dalli's mandate, Dalli refused to sign the letter of resignation that was brought to him by Romero Requena. According to Romero Requena, this letter was drafted after the meeting so that Dalli might be able to justify himself personally - it was not to give legal form to the procedure. This interpretation was shared by Barroso, who said this letter was not necessary - especially given that the resignation in itself “was not a question of labour law” but of political responsibility, and that the Treaty did not require any written document in these circumstances. This is “legal quibbling” on Dalli's part, Barroso told the judges.
Dalli argues that the claimed oral decision of his resignation must be annulled and that the Commission should pay him one symbolic euro for the “non-material damage” and over €1.9 million for the “material damage” - in other words, his unpaid salary. Coming out of the General Court on Monday 7 July, Barroso told press that Dalli is conducting “an absolutely unbelievable - not to mention a surrealist - intoxication campaign”. Barroso did not want to take a position on whether Dalli was guilty or not for the deeds for which OLAF reproaches him while the investigation of the Maltese authorities is still ongoing. Barroso again underlined that the situation in October 2012 was “untenable” and that there were risks of general suspicion against the Commission and a media scandal - which would have led to a delay in the review of the tobacco directive. At the end of the day, the risk was a possible repetition of the 1999 scenario when the whole of the Jacques Santer Commission had to resign. (JK)