OLAF leader stripped of his diplomatic immunity

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The leader of the European Union’s anti-fraud agency (OLAF), Giovanni Kessler, was stripped of his diplomatic immunity (which is a form of legal immunity that prevents diplomats from being susceptible to lawsuits or prosecution under the host country’s laws) after claims that he listened in on a phone call between witnesses without informing one of the parties during a corruption investigation.

If proven, this could be a crime under Belgian law. As a result of this, the agency can take the case to the European Court of Justice (ECJ) against Kessler. The office said in an email that “this would be an unprecedented step, but one that is crucial in ensuring the independence and proper functioning of OLAF and, through OLAF’s investigative work, the protection of the EU budget.”

Demands for the lifting of Kessler’s immunity were first made by the Belgian authorities in December 2014, making some accuse the commission that it was trying to delay the case.

The lifting of Kessler’ immunity by the European Commission could bring about two possible legal cases. One could involve the unprecedented decision which allows a national authority to investigate an EU prosecutor for work carried out as part of his mandate. The other could be that Kessler challenges the lifting of his immunity in an EU court.
By listening to the phone call, Kessler caused the resignation of Malta’s EU health commissioner John Dalli. This was after a tobacco firm, Swedish Match, claimed that a Maltese entrepreneur had tried to affect legislation, particularly relating to the EU’s ban on a smoke-free tobacco widely used in Sweden called snus. This was then investigated by OLAF. The OLAF report did not find any conclusive evidence of the direct participation of Dalli, but did consider that he was aware of these events. This resulted in Dalli filing a complaint in Belgium, and him stating that “I deny categorically that I was in any way aware of any of these events. I am taking all actions open to me to ensure that these unfounded conclusions will be proved completely false.” His resignation is the first by an individual commissioner for any reasons of impropriety (others have resigned early as a result of other things, e.g. to take up ministerial appointments).

According to Margaritis Schinas, who is a European Commission Chief Spokesperson, the lifting of the immunity “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 judgements in the substance of those elements”. Ingeborg Grassle (a strong critic of Kessler’s), however, commented that “the incidents around the Dalli case are serious ones and need to be investigated” and “further irregularities in other OLAF investigations also need to be looked into.” She also said that she would find it important and appropriate for Kessler to leave the office. In response to this, Fulvio Martusciello said that the rest of the Budgetary Control Committee (of which Grassle is a member of) does not share the same views, and that lifting the immunity would at least give Kessler a chance to clear his name.

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