Brussels, 12/05/2015 (Agence Europe) - The General Court of the EU ruled on Tuesday 12 May (case T-562/12) that former Health and Consumer Protection Commissioner John Dalli (Malta) voluntarily presented his resignation to the then Commission President, José Manuel Barroso, on 16 October 2012 and was not formally requested by Barroso that same day to resign because of a breach of his duty to behave in keeping with the dignity and the duties of his office. The Court thus dismissed as inadmissible the action seeking annulment of the alleged request, the existence of such a request not having been established, and also rejected Dalli's claim for compensation for forced resignation.
The lead-up. A report by the European Anti-Fraud Office (OLAF) stated that, in 2012, when the European tobacco directive was under review, a Maltese businessman close to the commissioner had contacted a tobacco company (Swedish Match), claiming to be able to use his connections with Dalli to have the EU ban on “snus” (a chewing tobacco, used mainly in Norway and Sweden) lifted, in exchange for a significant sum of money. While it was not established that Dalli had any direct involvement in this influence peddling, he had done nothing to prevent it, report it or dissociate himself from it even though he was well aware that his name was being used to obtain financial gain. In addition, the OLAF report concluded that Dalli had on several occasions been in contact with representatives of the tobacco industry in unofficial and confidential meetings, which were conducted without the knowledge or involvement of the competent Commission services.
The alleged resignation request. Acting on that report, Barroso called a meeting with Dalli on 16 October 2012 to ask him, Dalli alleges, to resign because of suspicions of influence peddling and failure to behave in keeping with the duties of his office. In such circumstances and without being able to read the report or consult a lawyer, Dalli agreed orally to resign. Towards the end of that meeting, the two men were joined by Johannes Laitenberger, head of president Barroso's cabinet, and Luis Romero Requena, director-general of the Commission's Legal Service, both of whom testified during the trial.
The action. Dalli challenged the Commission president's “oral decision” in the General Court and sought compensation for damages suffered. On the political level, he argued that he had been presented with a fait accompli to force him to resign. He said that Barroso asked him verbally to tender his immediate resignation without giving him time to react or to consult a lawyer and that, despite his refusal, later in the day, to sign a letter of resignation drafted for him, the Commission issued a press release announcing that he was standing down.
Barroso told the Court that the commissioner had known for months that he was being investigated and that he had warned him some days before 16 October that the findings of this investigation did not look good for him. Barroso said that Dalli's position within the College had become untenable and that, to avoid the risk of the report being leaked, a swift, voluntary resignation was required and that Dalli had unambiguously offered his resignation (see EUROPE 11116).
On the legal level, Dalli put forward a number of arguments to challenge the call for his resignation: - Barroso did not have the power to demand his resignation (only the Court of Justice can compulsorily retire a commissioner for inability to perform his duties or for a serious breach); - Barroso's decision could not result in a valid resignation; - the call for his resignation was not based on valid grounds (none of his actions had involved him in influence peddling and he had no intention of amending the tobacco directive) and OLAF's investigation procedure was illegal; - his right of defence had not been respected (he did not have the opportunity to properly examine the allegations against him); - he was unaware that other, less severe, measures against him had been considered.
The ruling. The Court rejected these arguments and ruled the action inadmissible, having established that Dalli had verbally offered his resignation to Barroso during the course of the meeting of 16 October and had repeated this resignation in the presence of Laitenberger and Romero Requena. This conclusion is corroborated in particular by: - the account of the meeting drawn up by Romero Requena stating that Dalli, while categorically denying the accusations against him, presented his resignation as a member of the European Commission with immediate effect in order to defend his reputation; - the comments made by Dalli himself to the Maltese prime minister and a Maltese radio station on the evening of 16 October that he had chosen to resign; - the fact that Dalli did not challenge the press statement issued by the Commission announcing his resignation.
As for Dalli's voluntary resignation without any formal request on the part of Barroso, the Court noted that, given his commissioner's failure to provide a full and convincing explanation when faced with OLAF's conclusions, the Commission president was determined that Dalli should leave the Commission and, should it prove necessary, to exercise his power under Article 17.6 of the Treaty of the European Union (TEU) to request his resignation. Barroso nevertheless remained willing to accord him what he regarded as the “political favour” of giving him the opportunity to resign voluntarily. That the request for a voluntary resignation was asserted increasingly insistently does not suffice to establish the existence of the alleged contested decision, the Court ruled, as long as a request for resignation under Article 17.6 of the TEU was not clearly formulated.
An appeal against this General Court ruling, on points of law only, may be lodged with the Court of Justice of the EU within two months. (Francesco Gariazzo)