European Commission withheld information on its contacts with Swedish Match

Soon after the Dalligate scandal broke, mid-October 2012, it became clear that the European Commission didn’t want to clarify what exactly had led to former Health Commissioner John Dalli’s resignation. Challenging this lack of transparency, Corporate Europe Observatory (CEO) submitted a freedom of information request, asking the Commission for access to “all documents related to Commissioner Dalli’s resignation over the issues covered in the OLAF investigation, including all minutes (and other notes) of meetings, all correspondence (including by email), both internal and external, and any other documents held by the Commission on these matters.”

Four weeks later the Commission responded, transferring a number of less relevant documents but refusing access to the most essential documents, claiming that transparency would “interfere with the Commission’s ability to conduct any follow-up actions” and arguing there is no overriding public interest in releasing the documents. CEO appealed the refusal immediately.

Another seven weeks later, the Commission, in its reaction to our appeal, confirmed its refusal to release the requested documents. We will challenge this decision with a complaint to the European Ombudsman. In its rejection letter, the Commission included three additional documents, including a hitherto unknown email exchange between Commission Secretary General Catherine Day and Fredrik Peyron, Swedish Match’s General Counsel and Secretary to the Board of Directors. This potentially controversial email exchange dating from a sensitive moment in the Dalli affair, should have been mentioned in the Commission’s answers to the 154 questions from the European Parliament’s Budget Control Committee to OLAF and to the Commission, but the Commission didn’t include the two emails in a list of contacts between Swedish Match and the Commission Secretariat.1

Within hours after Commission President Barroso had demanded Commissioner Dalli’s immediate resignation, Ms Day sent an email to Mr Peyron, informing him that the Commission had received the final OLAF report on 15 October and that Commissioner Dalli had resigned with immediate effect on the 16th, “despite the fact that he categorically rejects OLAF’s findings”. In her email Ms Day referred to a letter that Mr. Peyron sent to the Commission on 14 May (probably the letter in which Swedish Match formally filed a complaint) and her own reply to that letter, sent on 30 May.

In the morning of 17 October, Mr Peyron replied to Ms Day’s email, and in what looks like an attempt to profit from the situation, he repeated his earlier request for a meeting with Ms Day: “As I wrote to you on Monday2 we would very much appreciate a personal meeting with you to receive reassurance of that the issue of traditional Swedish snus is being evaluated based on science and according to established principles in the current review of the Tobacco Directive”. It seems Ms Day had cold feet about meeting Mr Peyron at such a delicate moment. On 22 October she formally declined Mr Peyron’s request for a meeting, advising him to “take contact with the office of the new Commissioner once that person has been appointed”.

The two letters of May 2012 that Ms Day mentioned in her email of 16 October, clearly fall within the scope of our request for documents related to the resignation of Mr Dalli. But the Commission did not include them in the list of documents identified as falling under the scope of our request, even after our confirmatory appeal. This manoeuvre enables the Commission to avoid having to explicitly refuse CEO access to these documents, or having to justify their refusal on the basis of one of the exceptions that regulation 1049/2001 allows to the general obligation to transparency.

Corporate Europe Observatory has today filed an additional request for access to the two letters of May 2012 that the Commission has withheld. Given the many open questions surrounding the Dalli affair, the general public should be able to look at these documents and see how Swedish Match formulated its initial complaint and how the Commission responded to it.

In recent months, spokespersons of the European Commissions have repeatedly stated that the Commission has been “extremely transparent” on the Dalli case and on the contacts between Commission officials and tobacco lobbyists. But releasing documents only after NGOs have filed 1049/2001 freedom of information requests is not exactly “extremely transparent”. And now it turns out that the Commission has been withholding key documents detailing contacts between Swedish Match and the Commission’s Secretary General. This selective approach reveals that the Commission’s approach has been far from transparent, but rather deceptive. Corporate Europe Observatory remains determined to get clarity on what really happened in the Dalli case and on the role of the tobacco lobby in the Tobacco Products Directive revision.

• 1. See the answer to question 12 (to the Commission Secretariat General). Source: Replies to the Questionnaire from the Committee on Budgetary Control of the European Parliament concerning the resignation of the former Commissioner John Dalli, 30 November 2012, page 34/35.
• 2. It is unclear if Mr Peyron refers to his letter of Friday 12 October, or to yet another letter or email sent on Monday 15 October.