Dalli Case and OLAF Investigation: After 12 Years, the conclusion — Kessler unblemished

The legal case involving the former director of OLAF (the European Anti-Fraud Office) has ended in a dismissal. The Brussels Court of Appeal has dismissed the case against former Italian magistrate Giovanni Kessler (pictured), in proceedings that were to determine whether an OLAF investigation was lawful under Belgian criminal law.

Specifically, the case concerned the presence of Kessler and an OLAF investigator at the recording of a telephone call made by a witness to a suspect, without the latter's knowledge. This act was documented by the investigators themselves, took place in a European institution, in accordance with European law, and is lawful in many European countries. The criminal proceedings, which ended twelve years after the events, were intended to determine whether the investigative act was admissible under the relevant provisions of Belgian criminal law and whether that law applies only to Belgian public officials or also to European public officials.

On these points, four prosecutors and three judges who dealt with the case during the proceedings took different and opposing positions, ultimately reaching a deadlock. They were unanimous only in recognising that Kessler and the OLAF investigators acted exclusively for reasons of service and without causing harm to anyone.

The full legitimacy of the OLAF investigation into Dalli under European law had already been confirmed in 2019 and definitively in 2021 by two detailed judgments of the Court of Justice and the General Court of the European Union, which rejected all the former Commissioner's complaints in this regard, including that concerning the same investigative act, which had been ruled on by the Belgian courts.

Meanwhile, in Malta, the corruption trial against former Commissioner Dalli continues with difficulty. According to the OLAF report and the Maltese prosecution, he allegedly asked, through an intermediary, for a million-euro bribe from a Swedish snus manufacturer in exchange for lifting the ban on its sale in Europe. The Maltese criminal proceedings, which were initially blocked by political interference, began with a serious delay and are unlikely to be concluded before the statute of limitations expires.

OLAF and its Director Kessler have come out of this case well: they have effectively concluded an independent investigation into a serving commissioner accused of selling tobacco legislation, and the legitimacy of their actions has finally been recognised. The same can be said of the Commission chaired by Barroso, which, on the basis of the facts established, took the necessary measures in a timely manner to defend the integrity of the European institutions, which had been jeopardised by a commissioner who was, to say the least, imprudent.

Maybe, the same cannot be said of the Belgian justice system, which, after eight years of proceedings, twelve years after the events, has shown itself to be uncertain and contradictory, ultimately concluding that it does not wish to pass judgement on the investigative activities of European officials, which have already been deemed legitimate by European judges.
This case highlights the need for a well-defined legislative framework for the activities of European officials, not only investigators, which are carried out – and whose effects have an impact – within the jurisdictions and legislations of various countries, which are often in conflict with each other.

In the absence of such a framework, those investigating or working at the European level risk not having the necessary tools and being exposed to risks and pressures that can paralyse them. Meanwhile, in the tangles and conflicts between national and European legislation and between European and national investigations, European crimes risk remaining hidden and their perpetrators unprosecuted.

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