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Kessler ruling threatens more tensions over EU justice system

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A European anti-fraud chief illegally taped a European Commissioner as part of an investigation, a Belgian judge ruled on Friday, in an unprecedented rebuke of the EU’s justice system.

Giovanni Kessler, a former boss of OLAF who left in 2017, received a one-year suspended prison sentence over his handling of a probe involving John Dalli, who was EU health commissioner. Dalli resigned in October 2012 amid allegations that his top aide sought bribes from the tobacco industry.

Dalli has vociferously proclaimed his innocence, and pointed to the ruling as partial vindication.

Kessler said he plans to appeal the ruling. 

“I have always operated transparently and with the aim of finding the truth on [the] allegation, which was a very serious allegation,” Kessler told POLITICO.

As the EU grapples with the fallout of a different bribery scandal involving Qatar, the latest twist in the so-called Dalligate case threatens to reignite tensions over a politicized internal enforcement system.

Dalli had been working on a rewrite of the EU’s Tobacco Products Directive when his aide Silvio Zammit was accused of seeking a €60 million bribe from a Swedish tobacco company to reverse an EU ban on snus, a type of smokeless tobacco.

The scandal resulted in Dalli’s ouster. While he was accused of failing to disclose some meetings with tobacco lobbyists, an OLAF report on the matter found no direct link between Dalli and the bribery solicitation. But Kessler contended there was “unambiguous circumstantial evidence” that Dalli knew about it.

Within a few years, however, Kessler himself fell under scrutiny, and Belgian authorities started looking into allegations that the Dalligate investigation was poorly executed and politically motivated.

After years of delay, the European Commission agreed in 2016 to lift Kessler’s immunity. That paved the way for Belgian prosecutors to question him over the allegations that he surreptitiously recorded witnesses in the case without informing all parties, a crime under Belgian law.

“It’s a purely legal dispute … on an investigative act that, in many countries of Europe, is definitely legitimate,” Kessler said, adding that the issue was even debated in Belgium as two different Belgian prosecutors had asked for the case to be dropped. 

In its ruling seen by POLITICO, the Belgian court however said it was “concerned” by Kessler’s attitude, as he “claimed to be unaware of the existence of legislation regulating the recording of phone conversations,” even though these restrictions derive from the European Convention on Human Rights that he could not ignore given his role as chief of OLAF.

“It took 11 years to finally breach the European Commission’s secrecy, although on just one part of the investigation,” Dalli said in a statement following the judgment. “The truth will prevail.”

Leonie Cater contributed reporting.

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