First, the disclaimer. The esoteric priestlike capabilities of warranted professionals are rightly respected by amateurs like me. If I’m going to ask for a doctor’s opinion about some ailment, I have no right to weigh years of medical training and experience, rigorous licensing, and peer review, against an early morning Google search.
This disclaimer is the one most oft repeated on this blog and I must state it again here because nobody likes a self-proclaimed know all.
I had to run a Google search after I read reports about what lawyers for the state, told the court moments before they were due to charge John Dalli with crimes the state decided to charge him with in 2012.
Here we are, 9 years later, and while John Dalli stands in the dock, the prosecution quivers in hesitation as, it claims, it came across rules of immunity protecting EU officials (John Dalli was an EU Commissioner) that may mean that John Dalli cannot be prosecuted.
“This can’t be right,” I thought. So here’s my take on this based on zero legal training, zero legal experience, zero rigorous licensing, and zero peer review.
Why are EU officials immune from prosecution? It’s so that if some EU member states does not like a law passed by an EU official or a decision they don’t like is taken by an EU official, they are not able to threaten them with consequences back home.
Imagine for a minute the EU legislates that there should be no trapping of birds. Without immunity Malta could pass a law that anyone who says that birds should not be trapped will, upon conviction in Malta, be sent to prison. I know it’s an unimaginable, extreme example. But this is the sort of unimaginable, extreme situation the immunity rules try to prevent.
It is to protect the agents of EU law from the use of national laws against them just for doing their job. I repeat that: for doing their job.
The immunity is provided for in Protocol number 7 “on the privileges and immunities of the European Union” attached to the Treaty forming the EU, its constitution.
Here’s what it says.
In the territory of each Member State and whatever their nationality, officials and other servants of the Union shall subject to the provisions of the Treaties relating, on the one hand, to the rules on the liability of officials and other servants towards the Union and, on the other hand, to the jurisdiction of the Court of Justice of the European Union in disputes between the Union and its officials and other servants, be immune from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written. They shall continue to enjoy this immunity after they have ceased to hold office.
Here is the caveat, as indeed there needs to be: “subject to the rules on the liability of officials and other servants towards the Union.”
What are those rules? I have consulted two sources to answer this question.
I looked at the EU’s regulation laying down the “staff regulations of officials and the conditions of employment of other servants of the EU”. In the section on disciplinary measures, it discusses what happens if an EU official were to face criminal charges in a court that are identical to charges handed down and being processed by an internal EU disciplinary committee.
The regulation says that “where, however, the official is prosecuted for those same acts, a final decision shall be taken only after a final verdict has been reached by the court hearing the case.”
What does this imply? It implies that it is perfectly possible (as you might expect) that a criminal court (and the EU doesn’t have any, so that would have to be a criminal court under the jurisdiction of a member state) may very well hear charges against an EU official even as an internal disciplinary agency of the EU hears the same charges.
The EU tells its disciplinary committees to wait on the criminal courts before deciding. It wouldn’t do so if there had been a blanket immunity protecting EU officials from prosecution in a court.
For further clarity, I also found specific rules concerning European Parliament officials, which John Dalli was not, but this is a good indicator of the thinking about what the immunities being referred to in the Treaty really mean as the same immunities apply to officials of the Parliament as to officials of the Commission, which John Dalli was.
Pursuant to Article 23 of the Staff Regulations, ‘the privileges and immunities enjoyed by officials [and other servants] are accorded solely in the interests of the Communities. Subject to the Protocol on Privileges and Immunities, officials [and other servants] shall not be exempt from complying with the laws and police regulations in force.’ Whenever those privileges and immunities are threatened, the official concerned must immediately inform the appropriate authority.
It’s clear that there is no intent whatsoever in the immunity provided for in the Treaty to let EU officials commit crimes with some exemption from prosecution and criminal consequence. Our AG’s apparent reading of that provision seems to be that an employee of the EU can kill, maim, steal, or solicit €60 million euro bribes, and no one can charge them of a crime in front of a criminal court. That is, for want of a better world, ridiculous. Soliciting €60 million bribes is not a Commissioner’s job. The AG’s reading of this is as far from common sense, logic, and a basic understanding of right and wrong as anything could possibly be.
One final point. The EU internal investigators who caught John Dalli in this scandal passed their evidence to the Malta police and OLAF’s officials have testified in the police’s case against Silvio Zammit, John Dalli’s henchman and alleged accomplice in the crime in question. OLAF did that because the disciplinary process internal to the EU ended when John Dalli resigned. The European Court of Justice confirmed the Commission’s decision on the employment consequences suffered by John Dalli.
But a crime must be prosecuted in a criminal court and the EU doesn’t have that. It’s for Malta to act. It hasn’t done so for 9 years and today our state went to court finding desperate and desperately stupid excuses (remember this is only my amateur opinion not their professional expertise) not to act against John Dalli.
John Dalli has walked out of court, soon to start his 10th year uncharged for crimes he was exposed for all those years ago.
The AG’s office is saying they are waiting for Brussels to guide them on whether they can indeed charge John Dalli. For all I know, the AG may be right and the Commission ends up confirming the AG’s view that John Dalli is immune from prosecution. If that’s the case, I have to ask why they waited 9 years to ask a question that should have been asked before they took the decision to charge John Dalli in December 2012.
If, however, I’m not talking rubbish, then the AG is not being stupid. The AG is doing the opposite of what they should be doing. The AG has a duty to truth. If they know something that exculpates John Dalli they should say so and drop the proceedings against him. But that’s not what’s happening here. There isn’t some piece of evidence somewhere that shows John Dalli did nothing wrong.
What’s happening here is a creative, misguided, quite possibly intentional misreading of the law to find a reason not to charge John Dalli and face him with the evidence collected against him a decade ago. Not even John Dalli’s defence attorneys should be doing that.
If I’m right, we have seen today a wilful disservice to justice. When that response comes from Brussels it should be published with the AG’s questions. And if it says John Dalli should have been charged, the charges should be served to John Dalli by a new Attorney General.