Dalligate… avec du recul – part I (European Lobbying)

I did say yesterday that the (ex) Commissioner Dalli case smacks of the surreal. With a little less than twenty-four hours time for reflection and with a flurry of statements and press conferences to look at (not to mention the early-worm analysis) we can safely conclude that the case is less surreal and more multi-dimensional.

Strange as it was seeing Lou Bondi among the legion of journalists querying the Commission’s move following the OLAF report, it was a fitting reminder of the (at least) dual dimension of this case. Bondi’s questions (and those of a few other journalists who bothered to research the Malta dimension) represented the Maltese interest in the affair. The TVM talk-show host is undeniably partisan (a “renown fact” some would say) in his approach and this element of partisanship was present in the Brussels Q&A. Even from our point of view, watching the events unfold yesterday we could not resist wearing Maltese partisan glasses – whether you formed part of the “we want Dalli to fail (see we told you so)” brigade or the conspiracy theorist “the evil clique has hit him hard” clan. It is inevitable in our Melito-centric way of thinking: this was happening in Brussels because someone in Malta needed it to happen.

But that is not necessarily the case is it? Here’s why.

European Lobbying after Dalligate

I spoke to a few colleagues who have worked closely within and around the lobbying industry in Brussels. Tucked away as I am in the Grand Duchy of Luxembourg I cannot claim to have first hand experience of lobbying (and thank heavens for that since my work depends on not being influenced by outside lobbying  – it IS a court of law you know). Insider information has therefore been crucial to better understand the works.

First there is the business of lobbying. Commissioners meet companies, associations and lobby groups regularly. It is not a hidden fact. You can actually check out a Commissioner’s agenda for such meetings -they are public knowledge. John Dalli has himself shown that he met most of the Tobacco Industry groups in preparation for his next Tobacco Directive in which he has invested much of his time. The trick here is to try to understand and find out exactly how far the Dalli-Zammit connection took this particular type of contact and lobbying. What the journalists were legitimately querying yesterday (particularly to the enigmatic OLAF chief Kessler) was “where is the wrongdoing”?

Industry experts will tell you that lobbying to meet a Commissioner is legit. That a go-between asks for money to set up a meeting “is neither here nor there”. The no-no bit comes when you “trade in influence”. If I understand this correctly it means that the Commissioner and his entourage don’t only deal with access to the Commissioner but also put a price on “changing legislation itself”. Which is where the whole business of proof remains hazy. Kessler told us that the proof was circumstantial and the OLAF report actually concludes that no legislation was influenced while adding that Dalli was aware of the dealings. The emails – the few that have surfaced (one actually) are neither here nor there. What is holding Dalli/Zammit back from publishing all the correspondence with Swedish Match?

An ex-colleague of mine at the Court, now busy on the lecture circuit blogged about Dalligate and its repercussions. Here is what he has to say about Dalli’s position:

These findings of the OLAF do not seem to prima facie warrant Mr Dalli’s resignation and contribute to make its sudden move appear as an overreaction to the questionable behavior of an individual foreign to his office. However, the language chosen by the Commission to convey the findings of the OLAF report is quite ambiguous and opens to speculation: to what extent Mr Dalli knew that he was the object of lobbying by a member of his Maltese entourage? OLAF seems to suggest that he was actually fully aware of this fact. Did he take any action to limit these lobbying efforts? And more importantly: to what extent Dalli’s behavior, even though a inert one, has been such as to breach the duty of integrity to which he was bound under Article 245 TFEU?

These questions cannot be answered easily and without the appropriate proof. In order to build a case for his defence, John Dalli would have to probably do the following:

• prove that the draft Directive was not influenced by the smokeless tobacco clan (no legislation effected)
• publish the full exchange of correspondence with any lobby teams (correspondence made in his name and to which he had access)
• procure a list of witnesses to any meetings that occured
• show a list of other companies/associations that he met
• possibly provide a timeline that could show that Swedish Match’s dealings turned sour after a possible rejection.

In these circumstances, the sudden resignation of Mr Dalli is somewhat surprising as it is likely to weaken not only his personal position but also that of the EU Commission. While the EU Commission emerges as the looser of this ‘situation’, the prima facie winner seems instead Swedish Match, one of the leader producer of smokefree tobacco products. One may legitimately wonder what has been the exact role played by the company in the birth of the professional relationship between the Maltese entrepreneur and the company. Was Swedish Match a victim or the creator of such a relationship?

Should it turned out that it has been the latter, the trap that Swedish Match seem to have successfully tended to Mr Dalli could turned out to be counterproductive: the benefit it could gain in messing delaying the preparation of the revised directive might be offset by the negative image it gained in originating this scandal. Should instead turned out that Swedish Match was the innocent victim of a fraud (read its yesterday’s press release), nobody will feel very sorry for a company selling tobacco products and willing to hire somebody who was ready to leverage on his personal relationship to steer the outcome of the policy process.

In any event, this episode, although unfortunate for everyone, has the merit to bring to public attention the limits of today’s tobacco control efforts : the lack of an open, evidence-based and non-ideological debate upon the future of tobacco (including snus). My claim is that should such a debate exist neither Swedish Match nor Commissioner Dalli would have fallen victim of the snus’ trap.