The European Commission has waited more than a year to decide whether to allow Belgian prosecutors to question the EU’s top anti-fraud official over allegations he broke the law.
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The unusual delay has raised concern among senior EU officials that the Commission is using the process of deciding whether to lift the immunity of Giovanni Kessler, the head of the European Anti-Fraud Office (OLAF), as a bargaining chip to put pressure on Kessler to step down in what has become a clash between Europe’s rival political groupings.
If the Commission takes the unprecedented step of accepting the request to lift the immunity, Kessler could be charged under Belgian law. If the Commission turns down the request, Belgian authorities would have to freeze their investigation, allowing Kessler to serve out the last two years of his term without having to answer questions about alleged misbehavior.
Belgian authorities want Kessler’s immunity lifted so they can investigate allegations the OLAF chief secretly listened in on a conversation between witnesses linked to the 2012 tobacco lobbying scandal known as Dalligate. Belgian law prohibits surreptitious monitoring or taping of phone calls.
The Dalligate investigation, which was carried out by OLAF, culminated in the forced resignation of then-health commissioner John Dalli over concerns about his unreported contact with tobacco lobbyists. The scandal highlighted the prominent role played by tobacco lobbyists in the Commission’s tobacco legislation reforms and prompted the institution to overhaul its transparency rules in December 2014.
The Commission, which informed Kessler of the Belgian prosecutors’ request to lift his immunity in May 2015, has refused to say why it has repeatedly postponed a decision. This delay has left Kessler’s political future at the mercy of the Commission — even though OLAF, which investigates corruption and fraud in the EU, was designed to be insulated from political pressure.
Under the regulation that established OLAF, Kessler cannot be fired or forced from his post without a complex disciplinary procedure. Unlike other Commission directors general, he can take legal action in EU courts if he believes a measure taken by the Commission “calls his independence into question.”
Kessler, a former center-left Italian MP, has come under political and personal attack from center-right and left-wing members of the European Parliament ever since he took over as head of the anti-fraud office in 2011. MEPs critical of Kessler have used allegations that OLAF mishandled aspects of the Dalligate investigation as part of their campaign against the former Italian magistrate.
All EU officials, including those who work for OLAF, have legal immunity from prosecution. Because of the special nature of OLAF’s work, the immunity of OLAF staff can only be lifted by a vote of the College of Commissioners, the Commission’s executive council. Such a vote would be unprecedented.
Although independent, OLAF is a Commission directorate general and comes under the oversight of Budget and Human Resources Commissioner Kristalina Georgieva, who is affiliated with Bulgaria’s center-right. Georgieva manages the Commission’s relationship with OLAF.
“I absolutely cannot comment on this matter,” Georgieva told POLITICO last week at the margins of a Bulgarian community event in Brussels.
A Commission official said Monday that “[a]ny request by a national authority regarding an official’s immunity would have been made in the context of a pending national procedure — on which, as a matter of principle, we do not comment.”
Kessler declined to answer questions about the case for this article.
Months of delays
Belgian authorities have long shown an interest in understanding how OLAF carried out its 2012 investigation into Dalli’s lobbyist meetings in Malta. Dalli resigned following Kessler’s report, even though it did not conclude that he had broken any laws.
The interest from Belgian law enforcement stems from detailed formal complaints lodged by Dalli, which POLITICO has seen, and which refer specifically to allegations Kessler listened in to a conversation by a witness as she contacted another witness from a speaker-phone. The evidence gathered from that call was not used in OLAF’s final Dalligate report. But if proven that Kessler did listen in, he faces a prison sentence of up to two years and a fine under Belgian law.
The Belgian investigation of Kessler has dragged on for years, with witnesses providing evidence against him as recently as last October, according to Belgian police documents seen by POLITICO.
Kessler has been attacked in the European Parliament by prominent MEPs from both the center-right European People’s Party (EPP) and the left-wing Greens, who have homed in on criticism by OLAF’s own internal watchdog over methods used by Kessler during the Dalligate investigation. The influential president of the Budgetary Control Committee, Ingeborg Grässle, has demanded that Kessler resign over the phone allegations.
Belgian prosecutors first approached the Commission about their Dalligate investigation in December 2014, but the Commission turned down their request to lift immunity because it was considered poorly worded. Kessler cannot be forced to speak to Belgian authorities with his immunity in place.
The Belgian prosecutors’ second request, in July 2015, prompted the Commission to refer the matter to its internal legal service. That request demanded the lifting of Kessler’s immunity along with the immunity of the four OLAF investigators who had signed off on the original report into the conduct of Dalli, which was leaked to Maltese media in 2013.
In mid-2015, senior sources said the Commission’s legal service recommended that Kessler’s immunity remain in place, fearing the prosecution of a director-general by national authorities could open the floodgates for similar requests from anyone aggrieved by a Commission decision.
On July 22, 2015, the College had been set to vote on the recommendation to keep Kessler’s immunity in place. However, according to Commission sources, shortly before the vote the Belgian prosecutor submitted a third, more detailed request for the lifting of Kessler’s immunity.
This time, the Belgians narrowed the scope of their investigation and requested the lifting of Kessler’s immunity. While the prosecutors had previously wanted to examine a number of aspects of the Dalligate investigation, they had now focused on the allegation that Kessler had listened in on a phone call made by a witness.
The allegation first surfaced in the 2012 report by OLAF’s supervisory committee, the anti-fraud office’s in-house supervisor with which Kessler has had a notoriously testy relationship.
Meanwhile, OLAF said it has never been contacted by Belgian prosecutors on the immunity matter.
“We have never been informed of any request of the Belgian authorities,” OLAF’s acting spokesperson Silvana Enculescu said, adding the agency only found out about the immunity issue in a May 2015 report by Britain’s Sunday Times.
“The Director-General continues to carry out his work in an independent manner, as per his mandate,” Enculescu said.
Potential Commission embarrassment
The attempt to have Kessler’s immunity lifted is part of a renewed push by Belgian prosecutors who are working on a file which began as a defamation case in 2012 unrelated to OLAF but has since turned its focus on Kessler.
Documents seen by POLITICO confirm Belgian federal police conducted new interviews into the matter late last year, and that police have now handed the file back to a Belgian prosecutor.
The reason for the renewed interest in the tobacco lobbying scandal is unclear, but the revival of the probe threatens to embarrass the European Commission, which made reform of its lobbying rules a top priority after the 2012 affair.
The Dalligate scandal erupted after it was discovered that Dalli had met with tobacco industry lobbyists in a café in Malta in violation of Commission rules, under which the encounter should have been internally disclosed.
The scandal also included allegations that a political associate of Dalli had attempted to solicit a bribe from a Swedish tobacco company in exchange for favorable treatment as the Commission was considering tobacco policy reform. These allegations, which were strongly denied by Dalli, eventually prompted the Commission to dismiss the commissioner.
Belgian authorities are looking into Dalli’s claims that OLAF’s original investigation into the affair was politically motivated and poorly executed — claims which have since been repeated by OLAF’s supervisory committee and MEPs hostile to Kessler.
The OLAF report contained no evidence of a direct link between Dalli and the alleged attempt to solicit a bribe by his political associate. Dalli has used the absence of a smoking gun to suggest the Commission had been wrong to fire him on the strength of the OLAF report.
However, Dalli’s subsequent legal action in EU courts that maintained that his dismissal had been unlawful failed last year. Dalli has appealed that ruling, which is unrelated to the legal action taken by Belgian prosecutors.
The Dalligate affair, along with subsequent revelations of undisclosed contact between Commission officials and tobacco lobbyists, sparked a debate over the influence of the tobacco industry at a time when the Commission was formulating legislation.
Two months after his 2012 dismissal, Dalli lodged a defamation lawsuit in a Belgian court against the Swedish tobacco company which had reported him, and the alleged attempt to solicit a bribe, to the European Commission. Sources with direct knowledge of the defamation probe said Belgian investigators reached a dead-end, following interviews with some witnesses in 2013.
Documents obtained by POLITICO show that on December 30, 2013, Dalli reaffirmed to Belgian prosecutors his initial defamation lawsuit but asked that it be expanded to include Dalli’s concerns about aspects of the OLAF investigation. Dalli asked the Belgians to examine allegations Kessler had broken Belgian laws by monitoring a private phone call.
By the beginning of 2014 the investigation was back on track, although by then Belgian prosecutors appeared to have lost interest in the defamation allegations. Legal sources say witnesses for the Swedish tobacco company, who had made themselves available to be questioned by Belgian police, have not been interviewed.
Parliament’s role
Belgian federal police interviewed at least one MEP who has been highly critical of Kessler in the past. It is not clear why an MEP was heard and Belgian police have declined to respond to POLITICO’s questions, saying it would be inappropriate to comment on an ongoing investigation.
German center-right MEP Ingeborg Grãssle, the chairperson of the influential Budgetary Control Committee, has been pursuing Kessler vigorously over OLAF’s Dalligate investigation since 2012 and has repeatedly asked for his resignation.
Grässle rejects any suggestion she encouraged Belgian police to pursue the matter of Kessler’s immunity.
“I never contacted Belgian authorities myself — not on the Dalli case, and not on Mr. Kessler,” Grässle said. “I’m working on both issues which are interlinked exclusively in the framework of my political mandate.”
However, documents seen by POLITICO show Grässle paid an invoice to a former staffer, Cristina Fancello, who now works as a freelance consultant in Parliament. The wording of the invoice suggests Grässle’s office had been gathering information which could be used by Belgian prosecutors against Kessler.
The invoice, in French, claims work on May 19, 2015, for the “Kessler/Olaf file”; the same invoice claims hours worked between May 14 and May 22, 2015, for “email exchanges, analysis and commentary (Kessler’s mistakes on Dalli) for a lawsuit before the Belgian state.”
Grässle said the invoice merely shows “these kinds of offences … are followed up ex officio by the Belgian prosecutor” and that there are “serious crimes which need to be followed up, whatever construction of lies is built up now to influence the College [of Commissioners] not to lift the immunity of Mr. Kessler.”