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The Dalli affair turns sour. Certainties and troubles…

This photo is symbolic of the situation after Dalli's resignation. An explosion, a big smoke, a splash and the night, with just a setting flash without being able to locate where the elements are (credit: Danish navy - shooting from the Absalon)

(BRUSSELS2 to Strasbourg) My pirate friends 🙂 will not mind me abandoning them for a few moments... But the resignation of the (Maltese) commissioner for Health and Consumer Protection, John Dalli, apparently simple at the start (a commissioner made a mistake, he takes the door), begins to take a political turn such that a blog devoted to European politics could not ignore it. Especially since the candidate called to replace him is precisely the Maltese Minister for Foreign Affairs.

Of course, we can have a simplistic approach and choose one of the two competing theses.

On the one hand, John Dalli: a poor innocent, victim of a plot hatched by the tobacco industry, as he suggests to anyone willing to listen. It's easy, tempting, a good story to write no doubt, but all the same a little light.

On the other, José-Manuel Barroso: a white knight, not hesitating to use his power to throw a "corrupt" for the sake of "0 tolerance" vis-à-vis conflicts of interest. This hypothesis is appealing. I would like to believe it. However, the position of the Commission is beginning to be more and more confused, and raises more and more questions, so disturbing are the inconsistencies surrounding the Commissioner's departure.

I have never been a "fan" of Dalli (cf. on Libya), I have never been of Barroso either... to tell the truth (his political talent is indisputable, his audacity and his sense of much less history) but I have great respect for institutions and how they work. And, honestly, when we take the facts one by one, we feel like a disturbance, a big political failure but also some missing links, the impression of being taken for a ride... This "crisis" seems really badly managed. It is time now for the European executive to explain itself, not on the sly, but concretely and fully before the European Parliament, as it should be in any constituted governmental system. Beyond the case, what is in question are the place acquired by lobbying in the institutional system and the links between politics and industry.

Resignation: without the knowledge of his own free will?

The Commission proclaimed on January 16 in a communiqué sent to the press: "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 Commission Spokesperson stubbornly maintained this position the following day during a press conference. was during the October 22 press briefing)." There is a clear political commitment (from the Commissioners) to resign if the President of the European Commission asks them to do so. This commitment is included in the letter of appointment. (...) Barroso offered Dalli to resign. There is a clear political commitment and a political demand. (This) action was necessary because the situation was untenable for the institution and for the commissioner. »

  • Let's not beat around the bush. There was no voluntary resignation from Dalli. But a resignation requested. Which amounts to the same thing in the end. But does not have an identical meaning both from a political and a legal point of view. In this case, we are within the framework of the requested resignation procedure, provided for by article 17.6 of the TEU, a "political" procedure and not within the framework of the voluntary resignation of article 246 of the TFEU. Which is not quite the same thing in terms of the motivation of the act that will have to precede the appointment of the future commissioner. Dalli who wants to take the case to court has a few arguments in his pocket.

Art 17.6 = "A member of the Commission presents his resignation if the president asks him to do so."
Art 246 = "Apart from regular renewals and death, the functions of a member of the Commission come to an individual end by voluntary resignation"

The form of the resignation: volatile?

No writing was signed. This is now a proven and recognized fact. The Commission defends itself by saying that an oral resignation with two witnesses is sufficient. On the political level perhaps, on the legal level, nothing is less certain. In a working relationship, there is an almost intangible principle, it is the written form of the resignation. An oral resignation is not one. Having witnesses is not enough. One can in a gesture of spite or anger say I resign, and then retract, the resignation will not be considered valid. Barroso's defense is to say " Under the Treaty, no written form is required for a declaration of resignation, and it is irrevocable".

  • It is true, the Treaty does not provide anything but it does not indicate either that the oral resignation is enough. In a political and administrative system where every decision is attested to in writing, including the smallest participation (or resignation) of a member in an advisory committee, it would be surprising if the resignation of one of the most important positions escapes this rule...
  • The presence of witnesses (2 senior Commission officials) who are not sworn (bailiff, magistrate, etc.) but are under the hierarchical responsibility of the employer does not lend any credence to this thesis (Barroso's chief of staff and the head of the legal department) has no real legal value. Any lawyer can confirm that. They are even counter-productive and discredit the thesis of "political" resignation.
  • In fact, the act appointing the new commissioner will have to be examined closely. It is indeed bizarre. But according to a practice that has been regularly followed recently - as confirmed to me by the spokesperson's service - there is no decision published in the Official Journal for the resignation of a commissioner but only for the appointment of a new commissioner. This then refers to the act of resignation (the letter) of the departing commissioner.

Why a latency period between the summons of the commissioner and his "clearance"?

Apparently according to Dalli's statements, not denied by the Commission, President Barroso summoned his commissioner on Thursday for a meeting the following Tuesday (16). To then leave him only a few minutes (half an hour according to Dalli) for his defense but above all... clear. We don't really know what was said. But given the attitude of the former commissioner, the interview was not courteous. Which probably explains the sour turn taken today where we are witnessing epistolary exchanges that harm the institution. Dalli complains to all MEPs about Barroso's behavior (Dalli's Letter to the MEPs). The latter replied in a press release sent to all the press today (October 24) that "Your various complaints and accusations of illegal or incorrect conduct vis-à-vis you that you have advanced in several statements since 17 October 2012 are equally incomprehensible. In this respect, I would remind you that you have had in good time several opportunities to react to the issues raised with regard to the OLAF investigation. "Commission press release of 24 October).

  •  It's new. It is surprising, however, to see a political leader disembarked manu militari, in the minute that follows, for a supposedly very serious fault. Or else Dalli is lying by not saying that he is aware of any of the charges.

The facts themselves?

This is the troubling point of the case. It's serious, very serious whisper the leaders of the mezzo vocce Commission. The director of OLAF spoke of a sum requested - "big" and of an at least passive involvement of the commissioner "He knew, said nothing and let it happen". At the very least it is therefore a matter of an error of assessment (serious politically but criminally not reprehensible; at the most passive complicity. is promiscuity with a dubious intermediary.

The intermediary: an entrepreneur or a politician?

What seems accredited is that there was, in one way or another, a financial request from an entrepreneur to a tobacco firm. We are talking about an entrepreneur. But he is above all a politician, deputy mayor of Sliema, which is anything but a small village, since it is one of Malta's main seaside resorts a few kilometers from Valletta, the capital, where everything Self-respecting Maltese can go and have fun (even if it's not the most romantic place on the island, let's face it). He has been an adviser to ministers on several occasions. Especially when Dalli was also a minister.

  • He is therefore not a stranger and a simple seaside restaurant where you can have coffee on weekends with friends. If proven fraud, there has been, we are in a political situation. No funds were disbursed. But to qualify the extent of the offence, it would be necessary to determine to whom the supposed funds were intended: in the pocket of the entrepreneur? (perhaps) in that of Dalli? Or in that of a political party (the national party)? In this last hypothesis, we can understand all the mystery that surrounds the facts...

What about the presumption of innocence?

For the Commission (press briefing of 22 October), it is " important to respect the presumption of innocence. (...) Any element that we could give in one way or another could interfere with the legal proceedings in progress, we cannot intervene to charge and discharge » (*).

  • This presumption of innocence seems to me to be largely flouted today. Both the circumstances of the resignation and the explanations surrounding it are embarrassed. And the letter just sent today (October 24), José-Manuel Baroso to the press to "reframe" his commissioner does not encourage indulgence. But, in fact, as one Commission official explained, " we are a bit stuck. And we don't want to fall into the trap that Dalli sets for us by giving some elements that will allow him during the legal proceedings to have it invalidated. (*) The spokesperson will also commit what can be described as a slip. Since he will then say " It is up to the Maltese justice seized by us and by Olaf to decide » before correcting himself (on a question from a journalist…): « No, it was only OLAF that took the matter to Maltese justice ».

The fate of the Tobacco Directive?

Dalli shouts anti-conspiracy conspiracy. We may not believe it. It's too easy as a defense. But it must be recognized that the European Commission accredits this position by its facts. In this case, the tobacco directive is postponed sine die. On the pretext of the absence of a commissioner. " The tobacco directive is on the European Commission's agenda before the end of the year. This file was to be submitted interdepartmentally for the first time (by then) (...) It is necessary to wait for the commissioner to be appointed and for him to take up the file and present his proposal ».

  • To have a new commissioner, you need a new hearing in Parliament (not easy, see below) and a decision by the Council. Which will take a few weeks (or a few months if the candidate is challenged by Parliament). This position gives rise to two remarks.
  • It should be noted that the final phase of interdepartmental discussion has still not taken place. This means that the "tobacco" dossier is postponed until the end of the year, or rather until next year, until the Commissioner takes his marks. In a legislative co-decision scenario, and in the context of the renewal of the institutions (in June 2014 but with a cessation of activities from the spring), this may mean that it will be the next Commission and the next European Parliament that will probably lead this procedure . ..
  • The argument of having to wait for the commissioner raises some doubts. Nowhere is it mentioned in the Treaty that the Commission must be at 27 to decide. This is particularly the case in the event of the absence of a commissioner - for illness, for political impediment (participation in an election, etc.) - or even by simple decision of the Council, which may consider that in the near future of the end of the legislature, a departing commissioner is not renewed (provision expressly provided for in the Treaties). It therefore seems entirely possible and legitimate for the "interim" commissioner, the Slovak Sefcovic, to assume the discussions within the college, without waiting for other appointments.

The European Parliament held to be negligible

The European Parliament has - so far - only barely been brought into the loop. This in itself is a real "mistake"! MEPs have just received an email from the Secretary General of the Commission, Catherine Day, informing them of the decision taken by the President of the Commission, on May 16, one hour after the press had already been informed! In other words, it's starting to growl on the benches on the right and on the left. Barroso's absence for the presentation of the Commission's 2013 program (a rather unusual absence for this kind of exercise) did little to dispel the unease.

  • The prospective commissioner, the current Maltese Minister for Foreign Affairs, Tonio Borg, has an interest in thoroughly researching his... his dossier(s)! He is expected at the turn not only on health and consumer topics - where he is relatively) a novice 🙂 - but also on his political stature. The positioning of the Commission also puts on its shoulders the whole procedure followed by the President of the Commission, such as the positioning on the Tobacco Directive. The battle is going to be tough...

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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