Unfair dismissal without the dismissal. Nor, technically, the unfair.
Dalli may claim his rights of defence were breached, while Barroso’s lawyers could argue the toss over whether those rights applied. It’s potentially a political ousting that wouldn’t be out of place in an episode of The Thick Of It.
EU commissioner John Dalli may well be considering whether his rights of defence were circumvented when he was summoned to be told of the result of a fraud inquiry: a meeting that prompted his resignation.
The ‘facts’ of the case, at least those scraps communicated publicly, have left many scratching their heads over why someone would fall on their sword over ‘circumstantial evidence’, but that’s clearly a matter for the EU’s fraud office OLAF to wrestle with – and now in the hands of the Maltese authorities.
No matter the extent of Dalli’s knowledge of the effort to extort in his name, there’s a curious perfunctoriness over the commission’s handling of his departure – and if that reflects procedural failings, it wouldn’t be the first time the commission and OLAF had screwed up a fraud probe on such technicalities.
In 2009 the EU courts found OLAF hadn’t told a number of Italian EU officials that an investigation into their invalidity claims had been passed on to the Italian authorities.
The snafu resulted in the EU courts overturning OLAF’s decision to refer the matter to Italy, and even awarded damages to the officials, who themselves had been suspected in the OLAF probe of having already defrauded the EU of thousands of euros in health payments.
The rules for commissioners themselves are not so prescriptive as for staff officials, but a June 1999 decision by the European Commission itself on internal investigations will be providing the now ex-commissioner Dalli some food for thought.
In an interview with Dalli this week with the New Europe paper, a day after his resignation, the Malteser was asked whether he thought the commission had followed normal procedure in informing him of the results of the OLAF investigation into the Maltese businessman who had made a cash-for-influence offer to a Swedish tobacco company, claiming he could use his relationship with Dalli to sway regulation.
“No it was not followed,” Dalli told the newspaper. In the meeting with EU commission president Jose Manuel Barroso “I was read a covering letter of a report, by the president in our discussion. He also stated the report was confidential. I have not yet as of today received this report.”
The June 1999 decision says of fraud investigations that “conclusions referring by name to a Member … of the Commission may not be drawn once the investigation has been completed without the interested party’s having been enabled to express his views on all the facts which concern him.”
By some stretch, if someone only read out the cover letter of the OLAF report to Dalli before cornering him into a resignation, that – a highly-paid lawyer for Dalli could argue – is by no means an opportunity to respond to ‘all the facts.’
But Barroso, too, has highly paid lawyers. None so lawyerly and highly paid as his own chief of staff Johannes Laitenberger.
One might – might – expect that the commission’s top potato and his accompanying bouquet de legumes would have made sure that the legality surrounding the fraud probe and Dalli’s departure was tighter than a gnat’s chuff.
There’s an exception to the 1999 decision, a Laitenberger may note. In cases requiring ‘absolute secrecy’ and the use of investigative procedures of a national authority there can be a waiver to the right to reply. That waiver is accorded by – oh, look: by the commission president Jose Manuel Barroso (or the commission’s secretary general).
But once the OLAF investigation was over, Dalli’s lawyer may reply, there was no need for ‘absolute secrecy’, and there had been no recourse as yet to national judicial powers.
Or, a Laitenberger says, the commission itself drew no ‘conclusions’ – Dalli resigned of his own accord.
Then Dalli’s account of the meeting with Barroso will become relevant in which, according to New Europe’s recounting of Dalli’s recollections, Dalli was told to resign or face dismissal within the hour.
It’s a potentially rebuttable account of the meeting, and all that actually happened was Dalli’s resignation which in legal terms will be seen as an act of Dalli’s will.
Without the tight coverage that the commission’s Staff Regulations afford, that leaves Dalli fighting his corner on these interpretations of ‘conclusions’, ‘enabled to express views’, ‘all the facts’, whether Barroso or the sec gen applied the waiver to the rights of reply, and if they did, whether they were within their rights to do so (i.e. if ‘absolute secrecy’ or national authorities were in play).
It may also leave him fundamentally struggling to have a possible judicial appeal accepted as admissible in the first place. Without a ‘decision’ by the commission to dismiss him, he has little to contest.
If he actually did do something wrong, then who really gives a toss. If – as he affirms – he knew nothing of the nefarious activities of the Maltese chancer, and it turns out he’s powerless to counter the way his departure was handled, then he’s simply been bullied out of office for fear of bad public perception of the Barroso commission, or even for darker, smokier reasons usually best left to speculation by the anti-Big Business conspiracy theorists.