Tag: OLAF

Categories
Dalligate

OLAF & Caesar’s Wife

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 Evidence

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.

Repercussions

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.

 

 

Categories
Campaign 2013

The surreal case of (ex) Commissioner Dalli

The next time there is an election for Sliema’s local council don’t expect a long list of potential candidates queueing outside Paul Borg Olivier’s door.  Silvio Zammit (no relation) is the latest PN councillor (and deputy mayor) to resign from his post citing “personal reasons”. Of course, the fact that he is embroiled in the scandal that has rocked the European Commission might be much more than a personal reason but hey… who’s nitpicking here? At the time of writing this post we do not have much to rely upon other than a statement by John Dalli (no surprise there – denial of involvement) and press statements by the Commission shedding light on the results of an OLAF (anti-Fraud office) report into the matter.

The unavailability of any further facts precludes anyone from acting as judge and jury on John Dalli, Silvio Zammit or the OLAF office for all that matters – without facts it is all based on speculation. This does not mean however that the goings-on over the last 24 hours do not merit more than a passing observation since a number of conclusions can be drawn – irrespective of the where the final proof will ultimately take us. Here goes:

1. Malta’s shame – PN’s dishonour

There’s a scandal in the Commission and it involves a Maltese nominated Commissioner. No amount of “boo-ya I told you so” celebrations on the part of some anti-Dalli factions within the PN will compensate for that one. If, as seems to be the general theory, the post of Commissioner was used as a sort of “kicking upstairs” of an inconvenient politician (a policy that seems to make party priorities trump national interest) then it is clear where the responsibility lies. If a one-man show blog could come up with this kind of CV for Dalli we can really see the nomination for Commissioner in perspective.

In comparison to the pie-on-the-face that comes along with a disgraced Commissioner, the  Silvio Zammit bit of the scandal is tantamount to a few crumbs on one’s beard. Be that as it may, it is no insignificant fact that Silvio Zammit was until a few hours ago a PN councillor who ran for elections in a locality on a PN ticket. The mere existence of the emails linking him with the Swedish company suffice to demonstrate that Silvio Zammit is used to an unorthodox way of approaching politics and that is a euphemism. His antics have contributed to adding him to an increasingly long list of ex-PN councillors who fail to understand the basic concept of proper political behaviour. This is a massive fail for the nationalist party – a huge glitch in the system that can only be exacerbated if the right scrutiny is not exercised on future candidates: at both local and national level.

2. Media wars

There was a banal exercise of mental masturbation yesterday as different “media companies” battled for the unenviable prize of having “broken the news” of Dalli’s resignation. I first heard of it via a phone call of a relative of mine who told me that RTK had just included a flash news in the bulletin. I am no authority on “who came first” in this instance though and quite frankly being first to get the news is nowadays much less important since the “scoop” is liable to lose its unique value in minutes if not seconds. What is more important is getting the right news and the right information. Not giving the news a particular slant at an early stage is important (as Natalino Fenech rightly could teach a few elements within the Labour party) .

So what did we know and what did the media tell us? Here’s a list of statements lifted from different media sources with a CONFIRMED OR UNVERIFIED quotient:

  1. 1. John Dalli has resigned from his post of Commissioner – (CONFIRMED) – (ALL NEWS)
  2. His resignation follows an OLAF investigation into alleged fraudulent activities – (CONFIRMED) – (ALL NEWS)
  3. The alleged activities involve contacts between a businessman and acquaintance of John Dalli & a Swedish Tobacco company (CONFIRMED) – (CM RELEASE)
  4. OLAF found conclusive proof of exchanges between this businessman and the Swedish Company. (CONFIRMED) – (REPORTS OF EMAILS & CM RELEASE)
  5. The OLAF report did not find any conclusive evidence of the direct participation of Mr Dalli but did consider that he was aware of these events (CONFIRMED) – (CM RELEASE)
  6. John Dalli categorically denies being aware of these events (CONFIRMED) – (PBS TVHEMM interview)
  7. The OLAF report showed clearly that the European Commission’s decision-making process and the position of the services concerned has not been affected at all by the matters under investigation. (CONFIRMED) – (CM RELEASE)
  8. The corrupt activity involved a Maltese businessman named as Silvio Zammit (TIMES, MALTATODAY, DI-VE – no explanation of how his name is out).
  9. The corrupt activity involved a Maltese entrepreneur who had approached the company using his contacts with Mr Dalli and sought to gain financial advantages in exchange for influence over a possible future legislative proposal on snus. (CONFIRMED – CM RELEASE, OLAF REPORT)

At this point we have to look at an article by MaltaToday that stands out for a particular slant that it gives to the correspondence between Zammit and Swedish Match. All the information gleaned from most sources (and in particular the Commission’s press statement) indicated that Zammit had contacted Swedish Match and that he “sought to gain financial advantages in exchange for influence over a possible future legislative proposal”. Whatever way that is read you get the idea that Zammit contacted Swedish Match and offered to use his confidence with John Dalli in order to influence future Tobacco law. The phrase “sought to gain financial advantage” clearly implies that Zammit offered his services for a fee.

Yet. And this is a bit yet. Maltatoday, having claimed to have seen part or all of the email exchange, titles its article “Silvio Zammit was offered fee to set up meeting with John Dalli – email“. In the article in question we find the following paragraphs:

MaltaToday is informed that Zammit was in contact with Swedish Match over the possibility of influencing John Dalli ahead of a major revision of the Tobacco Products Directive that would have further regulated the access of tobacco to minors and other non-tobacco products like Swedish Match’s snus.

Swedish Match told MaltaToday that had they received an “indecent proposal that was a real and credible offer” by a Maltese businessman who claimed he could influence Dalli on his anti-tobacco legislation.

According to the email between Zammit and Swedish Match, the Nationalist councillor was offered a fee to broker a meeting between the company and John Dalli.

This information does not result from any other publicly available piece of news. MaltaToday is giving a diametrically opposite twist to the events by implying that “according to the email between Zammit and Swedish match”, Silvio Zammit was offered a fee to broker a meeting between the company and John Dalli. So it would seem that rather than sending an email to the Swedish company in which he offered his services in exchange for a fee, Zammit – once contact was established – actually received an offer of a fee to broker the meeting. Which would be rather strange since the Swedish company then proceeded to report the facts to the Commission/OLAF for investigation.

It is in John Dalli’s interests to first and foremost prove that he had no knowledge of the going-on. Insofar as the current situation is concerned that would exclude him from the corrupt activities that allegedly involve the former Sliema PN Councillor. Whether or not the Swedish company or Silvio Zammit was doing the “offering” is irrelevant to John Dalli once he manages to prove that he was extraneous to the whole events.

Meanwhile, MaltaToday would do well to either publish the emails in its possession or rewrite the article in question in order to eliminate any ambiguity. Unless of course ambiguity was the original intention of the article (not that the headline leaves much space to imagination).

3. Conclusions

In this pre-election run up Dalli finds himself once again out of the game. New scandals, new allegations mean that any aspirations he had to join the dagger-fest that is brewing in Pietà must perforce be put on hold. The nationalist party does not come out of this series of events any stronger. Pie on Dalli’s face is pie on Lawrence Gonzi’s nomination for commissioner – a serious post that commands respect (which also puts a huge petard on the ridiculous conspiracy theories involving a nationalist plot to rid themselves of Dalli).

For starters the PN government has to nominate a new commissioner – and if this is to be a valid, face-saving politician it means disqualifying one of the big guns from the forthcoming national election. Tonio Borg is being mentioned and I would not be surprised if Simon Busuttil get a few virtual votes either. Everybody seems to be forgetting about our Ambassador Emeritus at this point – who better to sit wisely on a Commission seat? Labour exponents seem to be fantasticating about “Labour’s right” to nominate the commissioner. Nothing would be more ridiculous. That bright europarliamentarian Joseph Cuschieri has even suggested Alfred Sant – of course, Alfred “Switzerland in the Mediterranean” Sant. As they like to say with so much tongue in cheek in their parts… bir-rispett kollu!

As for Silvio Zammit. Well, he is definitely not the last of the PN circus act (pardon the pun) to have hit a brick wall when it comes to politics. Unless something is done about having a proper school of politicians – not the yes men kind who dwell on the mistaken idea that it is all about power and networking – then we surely have more surprises in the waiting from the nationalist party stables.

 

******

CM RELEASE – PRESS STATEMENT OF THE EUROPEAN COMMISSION – 16 OCTOBER 2012

Press statement on behalf of the European Commission

Commissioner John Dalli has today announced his resignation as a member of the Commission, with immediate effect.

Mr Dalli informed the President of the European Commission Jose Manuel Barroso of his decision following an investigation by OLAF, the EU’s antifraud office, into a complaint made in May 2012 by the tobacco producer, Swedish Match. The company alleged that a Maltese entrepreneur had used his contacts with Mr Dalli to try to gain financial advantages from the company in return for seeking to influence a possible future legislative proposal on tobacco products, in particular on the EU export ban on snus . As soon as the Commission received the complaint it immediately requested OLAF to investigate.

The OLAF final report was sent to the Commission on 15 October. It found that the Maltese entrepreneur had approached the company using his contacts with Mr Dalli and sought to gain financial advantages in exchange for influence over a possible future legislative proposal on snus. No transaction was concluded between the company and the entrepreneur and no payment was made. The OLAF report did not find any conclusive evidence of the direct participation of Mr Dalli but did consider that he was aware of these events.

The OLAF report showed clearly that the European Commission’s decision making process and the position of the services concerned has not been affected at all by the matters under investigation.

The final OLAF report and its recommendations are being sent by OLAF to the Attorney General of Malta. It will now be for the Maltese judiciary to decide how to follow up.

After the President informed Mr Dalli about the report received from OLAF, Mr Dalli decided to resign in order to be able to defend his reputation and that of the Commission. Mr Dalli categorically rejects these findings.

Mr Barroso has decided that Vice President Maros Sefcovic will take over the portfolio of Mr Dalli on an interim basis until a new Commissioner of Maltese nationality is appointed in accordance with article 246 (2) of the Treaty on the functioning of the European Union.

Mr Giovanni Kessler, Director-General of OLAF will be available in the press room after the midday briefing tomorrow.