The Europe of Commissioners has communicated the decision to lift the immunity of the European Union’s Anti-fraud Office (OLAF) chief Giovanni Kessler, who will now potentially face the Belgian prosecutor on questions related to the Dalli investigation. On Thursday, Eric Van der Sypt, a spokesman for the federal prosecutor’s office confirmed the Commission had indeed agreed to lift Kessler’s immunity: “His immunity was lifted by the European Commission,” Sypt told AFP, confirming New Europe’s story of Tuesday which broke the news of the Commission decision in a worldwide exclusive. The successful conclusion of the OLAF investigation led to the forced resignation of former Health Commissioner John Dalli in 2012.
The decision to revoke Kessler’s immunity was taken in a restricted session of the weekly College meeting of the European Commission last Wednesday, 2 March. The meeting was attended only by the 28 Commissioners, the Director-General of the Legal Service, Luis Romero Requena, and the Secretary-General of the Commission, Alexander Italianer, an EU source told New Europe. Asked to confirm this information to this newspaper, the European Commission declined to comment.
New Europe has uncovered that the Commission was first asked to lift Kessler’s immunity in December 2014, a request they have received a total of three times since then.
A well-placed EU source told New Europe that Kristalina Georgieva, European Commissioner for Budget & Human Resources had been offering Kessler a different position, and to keep his immunity in exchange for his resignation from the post, the only theoretically independent Director-General post of the European Commission. Ingeborg Graessle, Chair of the Committee of Budgetary Control in the European Parliament alluded to the attempt of the European Commission to strike a deal to force Kessler to step down:
“It is unacceptable that in order for his immunity not to be lifted the OLAF Director-General agrees to give up his temporary post at OLAF, and that on top of this, he even gets rewarded with a permanent contract,” she said.
New Europe’s sources in the European Parliament also confirmed that the Chairman of the EPP Group in the European Parliament, Manfred Weber, had also written to the Commission, asking for Kessler’s immunity to be lifted.
The Italy connection
The Italian origin of Kessler, brings another problem to the forefront for the European Commission. While President, Jean-Claude Juncker, and his Chief of Staff, Martin Selmayr, have gone to great lengths to improve relations with Matteo Renzi and the Palazzo Chigi, this move may be yet another thorn that will strain relations.
The legal case against Kessler
The greatest irony in the matter is that the Belgian prosecution case concerns the legal right of Kessler to suggest to one of the witnesses to record a telephone call. This call was intended to be used as a piece of evidence establishing whether the associate of Dalli was soliciting a bribe in the Commissioner’s name. What is under legal scrutiny in Belgium is accepted in most of the European jurisdictions and under EU law. Furthermore, Kessler may choose to challenge the European Commission’s decision to lift his immunity in the European Court of Justice.
A dangerous precedent
This not only prompts the question of whether Belgian or European law applies to European investigations, but also has serious implications on the work of OLAF investigators, and the Commission staff as a whole. Lifting Kessler’s immunity for an action taken in the course of his professional duty creates a dangerous precedent, which could potentially open OLAF investigators up to lawsuits.
The move will also have further implications on other Commission Directorates-General exposed to conflictive situations due of the nature of their work, such as DG Competition.