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OLAF director General Giovanni Kessler defended the operations of his team robustly when, today, he was permitted to address the meeting between the Eu Budgetary Control Committee and the OLAF Supervisory Committee. On the agenda for this meeting was the Supervisory committee report on the Olaf investigation of the Dalli case. Responding to unrelenting criticism by MEPs and the Supervisory Committee, Kessler said that the allegations that OLAF tried to hide information is defamatory and untrue.
The sitting of the Budgetary Control Committee started its sitting this morning. During this sitting the operations of OLAF and its Director General Giovanni Kessler is expected to be grilled regarding the report which led to the resignation of former Maltese Commissioner John Dalli. However the meeting, procedurally is between the Budgetary Committee and the Supervisory Committee of OLAF and on agenda is the OLAF report on the Dalli case. Giovanni Kessler was invited to the sitting.
EPP member Inge Grassle expressed concern that OLAF may not be functioning properly and noted that what she described as a large number of cases which may lapse due to a statute of limitations on time since Olaf cannot handle all the cases.
Mme Pignon fo the Olaf Supervisory Committee said that there has been a divergence of views on the issue of the need for access to information and procedural guarantees. She said that Olaf gave information but did not allow access to the document. She said that this 'doctoring' limits the extent and validity of the information. She said that the increasing difficulty in obtaining information is indicative of the clash of roles of the supervisory committee and OLAF. Se said that preceding caselaw is clear that the committee has to be informed fully not just formally and after the fact.
The debate was opened to the floor and the following points were raised by different MEPs:
- responsibilities of and relationships between OLAF and the Supervisory committee need to to be resolved and clarified and this is the responsibility of the commissioner involved. Supervisory Committee is not free to look into any case it wishes.
- Once the relationships and responsibilities are clear, recuperation of embezzled funds can become a priority.
- to Giovanni Kessler: if the issues in the Dalli case are illegal, why did you not denounce it to police.
- Independence of Director General and its limits should be established and clarified. In the Case of Dalli consultation with the Supervisory Committee should have been consulted. Telephone tapping controls of OLAF need to be defined.
Mme Pignon for the Supervisory Committee said that the prior to 2012 the supervisory functions were carried out very easily and the procedures were followed. She said that the supervisory committee does not have judiciary power and respects the decisions of the Court of Human Rights. On taping of conversations, these should be regulated by a law since this can be a breach of privacy. The decision of OLAF to listen into the conversations was not covered by any existing law and this concern was raised in the report.
Further Questions were asked:
- The Supervisory Committee is calling for access to cases which are passed on to the judicial authorities of the member states.
- Has the Supervisory committee discussed access to information with the Commissioner concerned?
- How many cases were not pursued because the sums involved in fraud were low?
- Olaf is most important anti-fraud tool in the EU and expert advice is needed to assess the legality of the actions undertaken.
- For the clarity of procedure need to be clarified and if the Supervisory committee cannot answer these questions, then the role of the committee needs to be re-dimensioned for the sake of the fight against fraud.
The Supervisory Committee said that the report was sent to the OLAF Director General and an abridged report was sent to the stakeholders as the superiors of the committee. It said that if there are infringements of human rights, then the EU Commission is the authority to take steps. Also, the Annual Report of OLAF indicates that there is a remarkable difference in the number of cases opened and concluded in 2012 and this begs the question as to how this happened. The supervisory committee is doing what it can with the resources at its disposal and to increase its surveillance, it needs more resources. The Supervisory Committee clarified that it does not go into investigations under way but only after the investigations are finished. It cannot refer the cases to court.
Further Comments
- The courts in Malta are doing their job but the EU needs to act if the law has been broken as this appears to be the case.
- If we have to discuss the Dalli case, this has to be done in a proper structured manner since this is still evolving.
- This is the destruction of OLAF and such a result would not benefit the anti-fraud fight.
- To those who claim that Dalli's rights have been breached, has Dalli made such a claim in a proper legal manner?
- Procedural failures have to be identified not breaches of human rights since the latter is not our remit.
- the Commissioner responsible for the anti-fraud policy needs to iron out the procedural issues to ensure independence of Olaf and the inquisitive rights of the supervisory committee.
The Supervisory Committee said that under Director General Kessler the flow of information to the committee has become systemically worse. Issues of Human rights too have to be observed.
Director General Giovanni Kessler was given the floor. He said that in 2012, the supervisory committee was appointed and the problems were those of establishing a working relationship. He said that the OLAF even put forward a proposal for procedures to access data in the files of OLAF. This has been agreed in September and is religiously observed. He said that in this discussion, this agreement was not mentioned.
Giovanni Kessler said that this issue is a resolution of a tension between the rights of the supervisory committee to access the files of OLAF and what information can be accessed. He said that in the past all and any information was freely and loosely available. With the interests of the individual being investigated at stake, the EDPS issued a binding decision that full access is not to be automatic but should be on a case by case basis, with a motivated request. This, said Kessler, was part of the recent agreement.
"It is defamatory to say that we have hidden information . This did not ever happen" exclaimed Giovanni Kessler.
Director General Kessler said that procedures can always be changed and the access to data can always be changed. On the specific issue of the cases sent to the judiciary, such as the Dalli Case, the legal parameters were observed: he said that the information was sent to the supervisory committee prior to contacting the national jurisdictions. "Facts are facts" insisted Kessler citing previous case law and based on the agreement reached on September. He said that the information was sent three days in advance (not five as is practice) since the resignation triggered urgency to send the information to the national jurisdiction. However this is foreseen in the agreement and in the prevailing case law. He said that the chairman of the supervisory Committee had raised no objection on the time frames.
DG Kessler said that the issue of human rights needs to be evaluated by the European court of Human Rights in a case opened by the person concerned and not by the institution. These accusations against OLAF are out of place, concluded Giovanni Kessler.
The EU budgetary Committee said that while OLAF said that the procedures are there, the Supervisory committee is not and the issue will be solved when both parties are satisfied. At that point the agreement should be approved by the Commissioner responsible.
