I’ll try to to be brief on this one and avoid excessive legalisms. Yesterday, the European Anti-Fraud Office (affectionately known as OLAF) deemed it necessary to issue “a statement in order to clarify comments contained in media reports”. Allowing sufficient leeway for the dangers of inevitable multi-lingual approaches in European matters, the press statement of an “independent wing” of the Commission probably raises more questions than provides answers.
In the first instance it is interesting to see a prosecution unit that remains so pro-active within the media spheres. In a way we can understand the concern since more often than not nowadays a large part of justice matters are dealt with in the public communication spheres long before the real questions are decided in the courts of law. There was however more than a hint of anxiety and patching up in this (I presume) carefully worded missive and maybe, just maybe, we can identify the reasons for the caution.
For the first time we have a clearer indication of what the OLAF report contains with regard to both Silvio Zammit (OLAF still insists on calling him a Maltese entrepreneur) and to Commissioner Dalli. Let’s take a look at the first paragraphs of the release:
The OLAF investigation found evidence that a Maltese entrepreneur, who had organised meetings between Commissioner DALLI and representatives and lobbyists of snus producers, repeatedly requested a considerable sum of money from the snus industry in exchange for the adoption of a proposal for the lifting of the ban on snus, trading on the name of the Commissioner. This request was declined by the snus industry and no payment or financial transactions have taken place.
The OLAF investigation found no conclusive evidence of the direct participation of Commissioner DALLI in the operation for requesting money. In line with Regulation 1073/99, OLAF has referred the case to the competent Maltese judicial authorities, for their consideration of the criminal aspects of the actions of the persons involved.
So we have here a clear delineation of the proof that OLAF has managed to unearth. We now know for certain that Silvio Zammit’s involvement was clear and proven. The involvement includes “repeated requests for a considerable sum of money”, a clear indication that Zammit promised in exchange that their proposal for lifting the ban would be adopted and that Zammit did so in the name of the Commissioner. We also know that Swedish Match declined the request and never transferred any money.
We also know that OLAF found NO CONCLUSIVE EVIDENCE of the direct participation of Dalli in the operation for requesting money. Significantly, quite significantly I would add, OLAF’s statement then states that this case was referred to the Attorney General “for consideration of the criminal aspects of the actions of the persons involved”.
Do note that the bit relating to the “circumstantial pieces of evidence” comes later. Unless this is a result of a bad case of press release drafting by OLAF’s PR people then we have something to dwell upon. More importantly AG Peter Grech has something less to dwell upon. The provisions of our law relating to Dalligate would be the Criminal Code chapters on Abuse of Public Authority (112 et seq. with particular consideration of 115, 121(4)(c), and 121A as well as Cap 326 – the Permanent Commission against corruption act. It would also seem that Silvio Zammit’s activities as described would be sanctionable under the relevant provisions. It remains to be seen how much the proof that is now in the AG’s possession can be used to inculpate John Dalli criminally.
Parallels may be drawn to the Arrigo/Vella cases of late and in particular to the notion of knowledge of corrupt offers. At this stage our assessment cannot be more than presumptive given the lack of information about what links John Dalli damningly to Zammit’s activities. So while we can safely say that on the basis of OLAF’s declarations a strong case has been built against Zammit (and I would add that on the basis of certain emails even Swedish Match might be liable to at least some investigation so long as it could have gone along with the auction), we have little or no certainty about Dalli’s criminal involvement.
This makes even more sense when we look at the next paragraph in OLAF’s statement:
OLAF has also concluded that there are a number of unambiguous circumstantial pieces of evidence gathered in the course of the investigation, indicating that Commissioner DALLI was aware of the activities of the Maltese entrepreneur and of the fact that this person was using the Commissioner’s name and position to gain financial advantages. OLAF found that Commissioner DALLI had taken no action to prevent or dissociate himself from the facts or to report the circumstances. In line with Regulation 1073/99, OLAF referred the case to the President of the Commission, for his consideration in light of the provisions laid down by the“Code of Conduct for the Commissioners”, C (2011) 2094.
What stuck out for me is the fact that after outlining this next set of facts OLAF explains how it referred them to someone distinct from the person who was at the receiving end of the first set of facts. In the case of the circumstantial evidence showing that Dalli was aware of Zammit’s activities OLAF specifies that these were referred to the President of the Commission for his consideration in the light of the provisions of the Code of Conduct for the Commissioners. I find this disconcerting to say the least. On the one hand I can understand that circumstantial evidence might be sufficient to prove a violation of a code of conduct but irrelevant in criminal proceedings but would that not be a call for Malta’s AG to make?
On the other hand it would explain Barroso’s swift action to oblige Dalli to relinquish his post. If Dalli will forgive me the female reference “Caesar’s wife must be above suspicion” and that means that Barroso might not require anything more than circumstantial evidence in order to rid himself of an uncomfortable commissioner. OLAF might have realised that this circumstantial evidence would not hold water other than within the confines of a strictly applied code of conduct – and opted to separate the two issues.
It is important to stress that my above analysis is based on a press release and just a press release. Be that as it may and given the original enigmatic responses of Mr Kessler this might be a good reading of the modus operandi in OLAF’s case.
On an EU level the level of evidence required to prove that a Commissioner is blemished is low. That may be because the Commission cannot afford to make mistakes. Before we heard of the amounts involved (€60m) a large number of journalists were still wondering what Dalli did wrong. Dalli might have had a chinese wall between himself and Zammit but the circumstantial evidence was enough for him to be considered to have stepped on the wrong side of the Commission Code of Conduct.
There is however a remote possibility (but still a possibility) that the AG’s conclusions might turn out to be surprising. Zammit seems to have no hope in hell of getting out of this. He’ll probably get the book thrown at him and more. His actions (if proven as OLAF seems to have proven them) make him fall foul of most of the provisions in the Criminal Code. Dalli? Now that all depends on the links that the AG can create based on the evidence before him. Will the proof that he was aware of Zammit’s activities be substantial? Will it suffice? The Arrigo/Vella cases might have some answers already but there might be more than that required here. It’s an open question but it might also be time for us to consider the scenario where John Dalli is not found to have committed any crime under Maltese law. The faeces might still be about to hit the rotating cooling device.
It may be far fetched but it is, as I say, a remote possibility.