Giovanni Kessler

Giovanni Kessler (1956) is a former Italian politician of the Democratic Party with a long career in Italian and international institutions.
Kessler was Director-General of the European Anti-Fraud Office (OLAF is short for the name in French ‘’Office de Lutte Anti-Fraude’’) from February 2011 until October 2017.¹ He was originally appointed by the European Commission in December 2010 for a term of five years.
OLAF investigates fraud against the EU budget, corruption and serious misconduct within the European institutions, and develops anti-fraud policy for the European Commission.
Giovanni Kessler and OLAF played a key role in the EU tobacco lobbying scandal, dubbed ‘Dalligate’.

Involvement in DalliGate Investigation

On 16 October 2012, the EU Health Commissioner John Dalli was forced to resign in a “cash for influence” scandal, following an investigation by OLAF. The fraud bureau has since been heavily criticized for its investigation into Dalli’s alleged knowledge of an attempt to bribe him into lifting the ban on Snus in the revision of the European Tobacco Products Directive.
Pivotal in contesting the quality of investigations by OLAF and Kessler’s role in Dalligate was Inge Gräßle, the head of the dominant center-right European People’s Party bloc in Parliament. As the European People’s Party’s coordinator of the budgetary control committee she had been closely involved with the European Anti-Fraud Office, and she was concerned about its future.²
A detailed overview of Kessler’s conduct in the Dalli investigation can be found in the 2012-2013 Activity Report of the Supervisory Committee of the European Antifraud Office (SC). The SC is the “guarantor of OLAF’s independence” that “supervises the investigatory function of OLAF through regular monitoring aimed at ensuring the proper conduct of investigations.”³
In its exceptionally strongly worded report, the Supervisory Committee warned that Kessler’s attitude and actions towards the Committee seriously jeopardized its independence.

Denying Access to Case Files

To start with, Kessler introduced arrangements that denied the Supervisory Committee the necessary access to OLAF’s investigatory casework. Without sufficient and timely delivered information it was “difficult for the SC to exercise its tasks properly”.
Kessler’s attitude determined the activities of the SC during the reporting period:

“A significant amount of time and resources was devoted to discussions with the OLAF DG Kessler, in meetings and in extensive correspondence, on restoring the SC monitoring tools. It resulted in adopting interim working arrangements which unfortunately did not prove to be effective.”

Challenging the Power of the Supervisory Committee

Kessler expressed a fundamental distrust towards the work of the Committee. He questioned the right and the competence of the Committee to examine individual cases, in particular of its task with regard to the protection of fundamental rights and procedural guarantees.
The SC discovered a number of serious issues in the Dalli case and presented its concerns in a so-called ‘formal opinion’, a provisional brief before the final report. The opening of the investigation did not respect the principle of proportionality, the Committee said, and while conducting the research Kessler had violated the respect of the principles of legality and impartiality. Furthermore fundamental rights and procedural guarantees and personal data protection requirements had not been secured.
The closing of the investigation did not go according to the rules either, as the Committee had not been allowed enough time to evaluate the Report before it was transmitted to the national judicial authorities.
Kessler, however, did not think the agreed procedure of informing the Committee five working days before legal steps were taken applied for the Dalli Case. Due to its importance and sensitivity, the Committee was given a “redacted and anonymized” version of the Dalli investigation report, he told Malta Today, only two days before transmission to the Maltese Attorney General (which was the day after Dalli’s resignation was announced by the European Commissionon the 18 October 2012). ⁴
And instead of taking the appropriate measures to improve OLAF’s investigative activity, Kessler chose to challenge the power of the SC to issue formal opinions on individual cases.
The Committee vehemently disagreed:

“Examination of individual cases and formulating the relevant conclusions is an indispensable element of the SC’s monitoring tasks making it possible to communicate swiftly the results of its work and the potential problems discovered. It allows the OLAF DG to react promptly to risks and to take the appropriate measures to improve OLAF’s investigative activity, where necessary.”

Risk of Impartiality

The SC was concerned about Kessler participating in investigative tasks such as the interviewing of witnesses; moreover, he took a Swedish Match lobbyist for lunch after taking evidence from her.
The Director General is to oversee the investigations, not to take part in it, since his role is to determine whether an investigation was being conducted properly or not. Participating directly in investigative tasks is a risk and may have an impact on the required impartiality in internal investigations.

Illegal Wiretapping and Intelligence Gathering

The Committee also holds Kessler responsible for illegal wiretapping without the knowledge of the people being investigated and for recording interviews of subjects without their knowledge.
Furthermore, OLAF collected intelligence in the Dalli-case, using its network of connections in EU member states, without any legal base.
According to the Committee, such interference could very well be breaching Article 7 of the Charter of Fundamental Rights of the EU, which corresponds to Article 8 of the European Convention of Human Rights.

In spring 2015, media reported that Belgian prosecutors had started a criminal investigation into claims of illegal wiretapping by OLAF during the Dalli investigation, and that prosecutors had requested the Commission to lift the diplomatic immunity of OLAF officials involved.⁵⁶ The Commission refused several requests, but in July 2015 granted the request to lift Giovanni Kessler’s immunity.⁷

Kessler filed a case with the European Court of Justice, seeking reversal of the Commission’s decision to lift his immunity, claiming that if he were to be put on trial, “it would imperil Olaf’s independence and investigations”.⁸ In January 2017 this court case was still ongoing.

MEPs Asks Kessler to Resign

Kessler was under fire for months over the Dalli case. MEPs were convinced that Dalli was forced to resign based on an OLAF report with just flimsy evidence. Inge Gräßle asked for Kessler’s resignation at several occasions – most recently in June 2013, when the Maltese authorities announced that John Dalli would not face criminal charges – with a growing number of MEPs supporting her.⁹
In response, Kessler insisted he would not step down–even if OLAF was found to have breached the law. Quitting, he told the Wall Street Journal, would leave future OLAF chiefs exposed to political pressure every time a report did not produce a prosecution.¹⁰

Consultation on Plain Packaging

In its submission to the 2012 UK Government consultation on plain packaging, Philip Morris quoted the head of OLAF supporting the position of tobacco companies against changes to packaging rules. The report used Kessler’s quotes as an authoritative voice to underline the industry argument of a possible increase in smuggling:

“Giovanni Kessler, the Director General of OLAF, more than 85% of current UK police officers completing a recent survey, and many other experts agree that plain packaging will make counterfeiting easier and cheaper.”¹¹

He echoed the industry argument that plain packaging would make counterfeiting easier and cheaper. Kessler made his comments during a session of Italian Parliament, invited by the Chamber of Deputies’ Committee of Inquiry on Counterfeiting and Piracy to speak as the head of OLAF, in June 2012. ¹²
However, five months earlier in a meeting with French officials, his point of view was completely the opposite. An article in New Europe noted that:

“As of January 10, 2012, OLAF’s position on plain packaging was clear: Plain packaging on tobacco products would not increase contraband or counterfeit cigarettes. It could even have positive effect on the control of ‘cheap whites’.”¹³

CV

Giovanni Kessler is an Italian magistrate, and according to his CV on the OLAF website:¹⁴:

• 2010-present appointed Director General of OLAF for a five years term.
• 2010 Elected the President of the Conference of European Regional Legislative Assemblies (CALRE).
• 2008 Elected member and then President of the legislative Assembly of the Autonomous Province of Trento
• 2006-2008 Appointed by the Italian government as High Commissioner to Combat Counterfeiting and Piracy.
• As a judicial expert he participated in several European Commission and Council of Europe evaluation missions in Eastern Europe.
• from 2003 Member of the OSCE Parliamentary Assembly and Vice-President. Participated in and led International Election Monitoring missions in the USA and in many other OSCE countries.
• 2001-2006 Member of the Italian Parliament. Authored bills on the International Criminal Court, the European Convention against corruption, the International Judiciary Cooperation and on the European Arrest Warrant.
• 1998-1999 Deputy Head in charge of Police and Justice at the OSCE Kosovo Verification Mission in Pristina.
• 1986-1998 Public Prosecutor at the criminal courts of Trento, Bolzano and at the Anti-Mafia Department in Sicily, dealing with organized crime, corruption and financial crimes.

TobaccoTactics Resources

• TPD: Dalligate
• EU Tobacco Products Directive Revision
• Smuggling
• TPD: It will Lead to Increased Smuggling
• OLAF