Evidence of potential corruption in a €40 million Marsa flyover contract has attracted the attention of EU anti-fraud prosecutors.

Possible corruption in the partly-EU funded infrastructure project has been on the police’s radar ever since the seizure of murder suspect Yorgen Fenech’s mobile phone in November 2019.

Data on the phone revealed Fenech’s background role as a middleman in the project, against the promise of €2 million in “success fees”, half of which were planned to be funnelled to a secret offshore company linked to 17 Black.

The massive infrastructure project, one of the biggest in recent years, was the first major test for the newly established roads agency, Infrastructure Malta.

Ayhanlar, the Turkish contractor represented by Fenech, won the 2018 tender to build the flyover, fending off competition from a consortium of Maltese bidders, among others. 

Its bid was just €500,000 lower than that of the Maltese consortium, RM Construction Ltd, V&C Contractors Ltd and Schembri Barbros.

The Maltese consortium had the second lowest qualifying bid, after Ayhanlar's.

However, it can now be revealed Ayhanlar was crippled by financial trouble just weeks into being awarded the contract.

Fenech’s role in the government tender led to insinuations of bribery by the Turkish billionaire who was later brought in to salvage the project.

Billionaire Robert Yildirim, whose global group runs the Malta Freeport Terminals, insinuated in an e-mail exchange with Fenech that “bribing” could have played a role in the Tumas magnate’s efforts to help Ayhanlar secure the contract.

“What will you tell the court? Bribing someone but no payment,” Yildirim said in response to Fenech’s threats to sue him for failing to pay the success fees.

Yildirim claimed in comments to Times of Malta that he was just "testing" Fenech, to see if the €2 million success fees were linked to bribery.

"If Yorgen said yes, I am bribing somebody, I need to give this money [to someone], I would have walked away, and said there was bribery involved [in the project]" Yildirim said.

Sources familiar with the police “file” opened on the case nearly three years ago say investigators did very little to move it forward, despite suspicions that Fenech’s political connections could have been used to ensure Ayhanlar won the contract.

At one stage, the “file” was even closed by police, who decided that no case could be built based on Fenech’s data alone.  The file was later re-opened upon review.

This year, officials from the European Public Prosecutor’s Office have moved to start their own investigation into the project.

The office is tasked with investigating crimes impacting the financial interests of the EU. The Marsa junction project was co-financed by the EU’s cohesion fund and the Connecting Europe facility.

The EPPO probe has hit its own roadblock, as the police have so far refused to comply with requests by EU prosecutors to hand over key evidence, namely the data found on Fenech’s devices.

A spokesperson for the prosecutor’s office told Times of Malta that EPPO does not comment about ongoing investigations, nor does it publicly confirm which cases it is working on, so as not to endanger ongoing procedures.

“Whenever we can say something about any of our investigations, we will do so proactively. Please let me also remind you that our competence is mandatory, which means that we must follow up on any lead within our remit. Be assured that we do so diligently,” the spokesperson said.

When contacted about the failure to cooperate with EPPO, and the reason behind the decision to close the Marsa file, a spokesperson said the police cannot comment on specific investigations.

Yorgen Fenech smokes a cigarette as he exits court in late 2019. Photo: Mark Zammit Cordina

Fenech, contacted via his lawyers, strongly denied any wrongdoing.

At the time, the Tumas magnate counted then prime minister Joseph Muscat and OPM chief of staff Keith Schembri among his close friends.

Since Labour returned to power in 2013, Fenech has been linked to a number of scandals involving major government contracts, including the Electrogas power station, the Montenegro wind farm and now the Marsa flyover.

Success fees are not unusual in certain sectors, including infrastructure projects.

However, as a 2015 anti-corruption paper by the International Chamber of Commerce put it, success fees can motivate an individual or company "to engage in bribery in order to ensure that they meet the targets required to trigger the success fee".