Commission allows Belgian prosecutors to investigate EU anti-fraud chief

Decision to lift immunity of OLAF head opens door to legal, political battle.

The European Commission has lifted the legal immunity of the EU’s top anti-fraud investigator, setting the stage for what could be a lengthy and damaging legal battle.

The Belgian federal prosecutor’s office told POLITICO Thursday the Commission had notified it of its decision to lift the immunity of Giovanni Kessler, the director-general of the European Anti-Fraud Office, which is known by its French acronym OLAF.

The decision followed inquiries by POLITICO, which this week revealed the Commission had been delaying its decision to lift Kessler’s immunity from prosecution since late 2014 in what Commission sources said has been a political attempt to put pressure on the former Italian magistrate to resign.

The lifting of Kessler’s immunity opens the door to two, separate legal clashes. The first is likely to involve the unprecedented decision to allow a national authority to investigate an EU prosecutor for work carried out as part of his mandate; the second could see Kessler challenge the lifting of his immunity in an EU court.

Both scenarios will force the Commission to again confront the damaging 2012 tobacco lobbying scandal known as Dalligate, which led to the forced resignation of then-health commissioner John Dalli — the first-ever ousting of a sitting commissioner.

Belgian prosecutors have requested the lifting of Kessler’s immunity three times over the past year. On all three occasions, the Commission delayed its answer, in what sources said was an attempt by some members of the Commission to convince the OLAF chief to step down.

As head of OLAF, Kessler is the only Commission director general who cannot be re-assigned or fired. Under EU regulations, the anti-fraud agency’s director general can take legal action in EU courts if he believes a measure taken by the Commission “calls his independence into question.”

According to documents seen by POLITICO, Belgian prosecutors want to question Kessler over allegations that, during his investigation of John Dalli, he listened to a telephone conversation between witnesses made on a speaker phone without informing one of the parties. If proven, this would be a crime under Belgian laws.

Kessler did not comment directly on the decision. But a spokeswoman for his office said in a statement that Kessler had written to European Commission President Jean-Claude Juncker seeking confirmation of the decision.

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“This confirmation is necessary in order for the Director-General to have the possibility to take the necessary initiatives to protect OLAF’s independence,” said the spokeswoman, Silvana Enculescu.

On Friday, Commission spokesman Margaritis Schinas confirmed that the College of Commissioners voted on March 2 to lift the immunity of a “senior Commission official,” but did not name the individual.

“It does of course not put into question the presumption of innocence of the senior Commission official with regard to the factual elements raised by the national authority, nor does it contain any judgments in the substance of those elements,” Schinas said.

Sources said the decision to lift the immunity has been politicized, with center-right political forces pushing for Kessler to be cut loose. Kessler is a former center-left member of the Italian parliament.

Kessler’s strongest critic in the European Parliament, German center-right MEP Ingeborg Grässle, has repeatedly asked for Kessler’s resignation and Thursday welcomed the decision to lift his immunity.

“The incidents around the Dalli case are serious ones and need to be investigated,” Grässle said. “Further irregularities in other OLAF investigations also need to be looked into.”

Grässle also warned that Belgian prosecutors would now face a situation in which possible witnesses in their investigation have to report to Kessler. “The clarification of the facts must not be obstructed,” she said. “I personally would find it important and appropriate for him to leave the office.”

However, there was growing evidence Thursday that Grässle was facing some hostility in Parliament over her tough line on Kessler.

“This is not even a center-right push — it is Grässle who is on a crusade,” said German center-left MEP Jens Geier, a member of the Budgetary Control Committee. “We have observed that Grässle takes every chance to damage Kessler.”

While Geier said he did not know what the allegations against Kessler were, he was certain Grässle was “very willfully” construing something “designed to hurt OLAF.”

There are also signs of unease among members of Grässle’s center-right European People’s Party, with some MEPs distancing themselves from the chairwoman.

“It’s obvious that the chairwoman has her views, which are not the views of the Budgetary Control Committee,” said Italian center-right MEP Fulvio Martusciello, while adding the lifting of immunity would at least give Kessler the opportunity to clear his name.

But French Green MEP José Bové said the campaign against Kessler in Parliament was based on legal, not political considerations.

“Everything we know in how the OLAF investigation was carried out shows Kessler overstepped his mandate and powers,” Bové said, referring to OLAF’s 2012 report on Dalli, which was leaked to Maltese media in 2013. “The investigation was unprofessional and totally one-sided.”

After speaking to POLITICO Thursday, Bové issued a statement claiming to have a recording of Kessler’s controversial interview of a witness in the Dalligate investigation — an interview which has been criticized by the OLAF supervisory committee but which is not part of the Belgian investigation.

Although independent, OLAF is a Commission directorate general and comes under the oversight of Budget and Human Resources Commissioner Kristalina Georgieva, who is affiliated with Bulgaria’s center-right. Georgieva manages the Commission’s relationship with OLAF.

This article was updated to include a statement from the European Commission.