Dalligate: Smokescreen or smoking gun?

Commissioner Dalli's resignation was announced last Tuesday following an investigation by OLAF, the EU's independent fraud investigation agency. It concluded that Dalli had been aware of a Maltese entrepreneur referring to Dalli in an “indecent proposal” to a tobacco company, Swedish Match. The proposal was for payment to influence EU legislation in favour of their banned product 'snus'. As more details of the case have emerged however, it has become clear just how much we don't know. CEO offers an overview of the case, the many unanswered questions and, most importantly, the lessons to be learned.

Political context

Corporate lobbying is rife in the Commission, and wields significant influence in EU decision-making. There is a systemic pattern of privileged access for business and industry interests, facilitated both through both formal channels – business-dominated expert groups and online Commission consultations for example - and informal channels – lobby meetings, dinners and events, all conjured up by an estimated 25 000 lobbyists who roam the corridors of Brussels. This takes place against a backdrop of lax regulation, from a voluntary lobby register and a vague code of conduct for Commissioners, to inadequate implementation of revolving door rules and insufficient scrutiny of conflicts of interest in the Commission, its agencies, the Parliament, and other EU bodies.

For your eyes only: the secret-but-transparent OLAF report

Giovanni Kessler, Director General of OLAF, the EU's independent fraud investigation agency, told press in Brussels last Wednesday that OLAF had undertaken a full investigation into the dealings between Swedish Match, the Maltese entrepreneur and Commissioner Dalli. At the end of this investigation, Kessler said, they drew reasoned conclusions, “which are detailed in full transparency in the report”. But the "transparent" report is secret, and cannot be made public.

Ringmaster or Illusionist: Silvio Zammit

The Maltese entrepreneur has been named as Silvio Zammit, a restaurateur, circus-owner, former councillor and vice-mayor of Sliema, friend and former political party canvasser for Dalli. Zammit claims that his role in the affair “was that of a lobbyist...above board and regular, in consonance with established practices.” Zammit has not however registered in the Commission and Parliament's voluntary Transparency Register.

With such detailed knowledge of EU tobacco legislation, and the means to offer a reported €60 million, several questions are raised. Is Zammit working alone? Has he done cash-for-access work for other clients, and if so who? Is he linked to other lobby consultants/consultancies? How was Zammit known to Swedish Match? Answers are not available - this information on lobbyists is not held, and OLAF has not released their findings.

To meet or not to meet

Dalli has stated that no meetings organised by Zammit took place with Swedish Match. Kessler however referred to two meetings that Zammit had arranged. Dalli later said that these referred to a meeting with a snus lobbyist in August 2010, and one with a Maltese lawyer in January 2012 concerning the Commission's position on snus. According to Dalli, there was no further contact with Zammit regarding snus after this. Whether these meetings comprise OLAF's unambiguous circumstantial evidence is hidden in the OLAF report.

An offer he can't refuse

A major ambiguity of this case is whether Dalli resigned of his own accord or was forced to resign by Commission President José Manuel Barroso. The Commission first said it was a personal decision of Dalli's. But Dalli outright denied this, and demanded a formal request for his resignation, otherwise “there is no resignation”. The Commission then said Barroso had 'offered Dalli the possibility of resigning', as they agreed it was “politically untenable for Dalli to remain”. But Dalli said this was a lie, Barroso said he “must resign or I will dismiss you”. Barroso responded that Dalli's “accusations of illegal or incorrect conduct... [are] incomprehensible.” Dalli is now threatening the Commission with legal action.

The situation resembles a playground fight, Barroso's word against Dalli's. The Commission has tried to close the affair, saying that “As far as we're concerned, this whole question of the resignation of Dalli is over, and occurred last Tuesday.” Quite how the European public, press and members of Parliament feel about that, let alone Commissioner Dalli, is another matter.

Commissioner's Code of Conduct

Kessler said “that when OLAF submitted its conclusions to the Commission President it asked for them to be evaluated in light of the code of conduct for commissioners." But the Commission has not said Dalli has broken any rules in the code, and it is unclear what, if any, rule he could have broken.* What they did say, was that it was politically untenable for Dalli to stay, because they “consider he had several unofficial contacts with the tobacco industry, through a private intermediary, without there being any discernible or legitimate reasons to involve this intermediary”.

Yet the Commission also maintains that this was a political assessment, not a legal one, “as legally speaking we have no evidence of any illegal behaviour of Mr Dalli”. This raises the question of why the case has been handed to the Maltese judiciary, if there is no evidence of illegal behaviour. The Commission also says that the presumption of innocence, in absence of any legal verdict, means Dalli is fully entitled to his pension and three year transitional allowance.

Tobacco Products Directive: Dead in the water?

According to Dalli, this has effectively "killed the tobacco directive, to the tobacco industry's advantage." Even with a Commissioner appointed, they could not be approved by the European Parliament before January, delaying the next round of consultations on the Directive - which Dalli said were supposed to start this week – until February. This would exceed the timetable for the legislative process, meaning that the Directive would have to start from scratch all over again.

The Commission has said that the directive is still on their work programme for 2012. As soon as a new Commissioner is instated, they will take up responsibility for the dossier. When this will be is not known - Malta has nominated Foreign Minister Tonio Borg – but his appointment must be approved by the Parliament.

But this delay is crucial, as the longer the wait until tighter restrictions on tobacco sales in Europe are brought in, the bigger the victory for the tobacco industry, and the bigger the loss to European health. The directive has already been delayed by Commission Secretary-General Catherine Day twice, according to Dalli, for need of “further discussion.” MEPs and health groups have called for no further delays to the Directive.

Tobacco industry smokescreen or the smoking gun of a corrupt commissioner?

The complaint made to the Commission by Swedish Match in May 2012, which triggered the OLAF investigation, alleged that Swedish Match had first been approached by Zammit. Swedish Match later claimed that Zammit had requested a 10 million euro down-payment, with 50 million more when the EU ban (except in Sweden) on snus, their smokeless tobacco product, was lifted.

But a March 2012 email leaked last week revealed the secretary-general of lobby platform the European Smokeless Tobacco Council (ESTOC), Inge Delfosse, soliciting an informal meeting with Dalli from Zammit, and enquiring how much he would charge for this. The chairman of ESTOC, a group which represents the wider tobacco industry, is the public communications director of Swedish Match, Patrik Hildingsson, the same man who submitted the complaint. Hildingsson also appears as the legal representative for both ESTOC and Swedish Match in the Transparency Register.

This double role has created speculation about Dalli being the victim of a tobacco lobby set-up, motivated to delay the Directive (profitable in itself) and get rid of an unaccommodating Commissioner. Zammit has alleged that he “was contacted by the foreign party and it was they who set the ball rolling.” Dalli has called this entrapment.

Was the allegation a politically-motivated tobacco industry trap? Kessler says that OLAF did consider a self-interested motive, but after examination concluded that illicit requests had been made – for money to change Commission decisions, referring to Dalli by name, with his knowledge. So the company quite rightly reported this “normal lobbying relationship contaminated by illicit activity.”

OLAF has since stated that “OLAF was aware of the evidence reported in recent press articles which formed part of the overall findings of the investigation on the basis of which OLAF has drawn its conclusions.” Presumably this includes the email between ESTOC and Zammit. But OLAF has not explained on what basis they concluded it was not a set-up, or how this piece of evidence fits into the picture.

Swedish Match have categorically denied entrapment of Dalli. They also told Maltese newspapers that they received the offer from Zammit back in 2011, not early 2012, as reported by the Commission and OLAF. Hildingsson has also insinuated that Dalli's Mediterranean origins could have undermined his professionalism: "Could it be that we in the Nordic countries are less susceptible to this type of business?"

A riddle, wrapped in a mystery, inside an enigma

The latest in this string of accusations came yesterday. According to Maltese press, Hildingsson said that the Maltese lawyer Dalli is alleged to have met in January 2012 was working for Swedish Match, and that Dalli told the lawyer that lifting the ban on snus would be political suicide. He then left the meeting, allegedly leaving Zammit to tell the lawyer that Dalli wouldn't take a politically suicidal decision without gaining anything, so they'd have to pay. Hildingsson alleges that Zammit elaborated that the 60 million would be compensation for a lost political career, and that Swedish Match should deliver the first 10 million directly to Dalli, who would then explain how he would lift the ban. But given that Dalli has called for OLAF to publish their report, it seems unlikely he would implicate himself so deeply. Or could he be calling their bluff?

No smoke without fire

So what, according to OLAF, has Dalli done wrong? Kessler said the fault lay in not acting, despite knowing that his friend Zammit was offering to set up lobby meetings with him (and indicating he could help change Commission policy), in return for cash. But Kessler also indicated that it was the size of the sum that Zammit asked for that made the case problematic. "What started as a normal lobbying relationship ended up being 'vitiated' when instead of a normal fee, the businessman asked for an enormous amount of money."

This indicates a lack of clarity about what is and what is not a normal lobbying relationship. What 'vitiates' it? Is there a magic number at which the fee for arranging a meeting, through informal contacts with a public official, jumps from being a normal part of the political process to the subject of a fraud investigation? One thousand euros? One million? Fifty million?

The Commission however says Dalli had to go because of his 'unofficial contacts' with industry, through a private intermediary, without 'any discernible or legitimate reasons to involve this intermediary'. In which case, the Commission should surely assess the wider culture of lobby meetings arranged by intermediaries, including the many consultancies and lobby firms that line Brussels' streets.

Dalli however has defended the role of middlemen, including his friend Zammit, in setting up meetings between international organisations and Commissioners. He suggests that they do it not for money, but simply to feel important, and because “people think that you have to go through someone to go to the Commissioner... I would be such an evil mind to think that for someone to set up a meeting he would take money. All I say is that it usually is a feeling of importance." This remarkable statement raises concerns about the kind of political culture and ethics Dalli sees as normal.

Politically untenable: why Dalli and not the rest?

Commission President Barroso required Dalli to resign because it was politically untenable for him to stay, given his links to lobbyists who wanted clients to pay for access and influence over an important and sensitive dossier. In which case, why is it only Dalli who has been sacrificed to the gods of political tenability when other Commissioners, embroiled in similar situations, have been allowed to stay? CEO would welcome a tougher stance from the Commission on undue influence, but unfortunately there is no indication that this is the case. There are a number of cases where Commissioners have had meetings that were set up by friends or contacts acting as lobby consultants and making money out of this.

Take, for instance, Commissioner for Energy, Günther Oettinger, who met with EUROFER, the European Steel Association, in 2011. The meeting was set up, allegedly for a fee, by former head of the Austrian energy company ÖVP, and Austrian Vice Chancellor, Wilhelm Molterer. Molterer accompanied the chief executive of Voest and head of steel industry association EUROFER Wolfgang Eder, on 9 February 2011, to a meeting with Oettinger in Brussels. This case was reported in a large Austrian newspaper, but the Commission did not act.

Or Rolf Linkohr who, in 2007, was an energy industry lobby consultant and at the same time special adviser to then Energy Commissioner Piebalgs. Piebalgs was not only ''aware'' that somebody was making money selling access to him, he had appointed Linkohr. On the website of his consultancy, C.E.R.E.S, Linkohr advertised his status as special adviser to the Commissioner. But no action was taken against Piebalgs. Only Linkohr's position was not renewed.

And what about Commisioner Günter Verheugen, who co-formed EU lobby consultancy, the European Experience Company, with his former head of Cabinet Petra Erler, when he left office? Their website initially stated that they can ''arrange meetings with experts from the European Commission,'' presumably for a fee. This reference was then removed, but the Commission was unconcerned, and gave the green light to Verheugen to continue cashing in on his access to the Commission, with only minimal restrictions on activities.

It is no secret that corporate lobbying plays a heavy role in Commission decision-making. The Barroso Commission includes numerous Commissioners with close ties to industry, and Barroso II has overall shown itself to be extremely big-business-friendly.

Conclusion: Commission must act to curb undue influence

The whole picture of Dalligate is confusing. Are we looking at a tobacco conspiracy or a nepotist Commissioner? At a badly-handled scandal or a politically motivated mine-field? It could turn out to be a combination of all of these scenarios. It remains uncertain. Based on contradictory statements coming from the Commission and the ex-Commissioner, the myriad of stories and exposes emerging in the press, or the transparent-but-secret OLAF report, it is clear we don't have enough information to know what has occurred.

CEO has submitted several access to documents requests, not only to Dalli's old department, DG SANCO, but to the departments closest to Barroso, DG SEC GEN and Legal Services, to find out more about Commission meetings with the tobacco lobby. Whether this will shed more light on the farcical case of “Dalligate” remains to be seen. But there are nonetheless a number of very solid conclusions we can draw from this spaghetti-bowl of a scandal.

1. More transparency is urgently needed

For the sake of transparency, the Commission's credibility, and public trust in an already opaque and complex institution, the OLAF report should be released. Support has come from the President of the European Parliament for this, pledging to look deeply into the issue, with the Green group and the Socialist group demanding transparency over the case from the Commission and OLAF. The evidence, and the basis on which the conclusions were drawn by OLAF, are a prerequisite for answering the questions and uncertainties outlined above. The Commission itself has said “we have no evidence of any illegal behaviour of Mr Dalli”. If it is not a criminal case, it is unclear why the report cannot be made public. Even if the report is not published, the Commission should provide full clarity on these issues as soon as possible.

2. Tighter rules to prevent undue influence

The Commission should have a pro-active and consistent approach to prevent undue influence, and tighten rules and procedures around the issue of privileged access. They should open investigations into analogous cases of cash-for-influence like those outlined above. There needs to be an overhaul of the Code of Conduct for Commissioners, which is currently too vague on this, and other, areas. There should also be mandatory ethics rules for lobbyists, beyond those laid out in the code of conduct agreed to when signing the voluntary Transparency Register, which are so weak that they do not even curb cash-for-access practices like this.

3. A high-quality, mandatory lobbying register and pro-active transparency on contacts with lobbyists

The Commission and Parliament’s weak and voluntary ‘Transparency Register’ must be replaced with a mandatory lobby transparency system that enables EU citizens to see who is influencing EU decision making, on which issues, on whose behalf, and with what budgets. In addition to the Transparency Register, through which lobbyists report on their activities, the European Commission should provide online transparency about meetings and correspondence between Commission officials and lobbyists.

4. A ban on payments for privileged access

Dalligate has not only demonstrated the inconsistency in the Commission's approach, it has also shown a certain confusion about when a lobbying relationship becomes corrupt. CEO believes that in a democratic system, political access and influence should not depend on how much money you can pay. Lobby consultancies and lobbyists should be banned from charging to arrange meetings with Commissioners and Commission officials. This provision should be included in a revised code of conduct for Commissioners, the Staff Regulations and the code of conduct for lobbyists.