A former lobbyist for tobacco company Swedish Match, which had been seeking to overturn an EU-wide ban on snus tobacco has told court she had been “ambushed” by OLAF chief prosecutor Giovanni Kessler and subjected to five hours of questioning.
Gayle Kimberley, a lawyer formerly working with European institutions and engaged as local representative for the tobacco company, took the witness stand in ongoing proceedings against former EU Commissioner John Dalli who stands charged with trading in influence and attempted bribery.
Charges stem from allegations that Dalli’s former aide, the late Silvio Zammit, had sought a €60 million bribe to help lift an EU-wide ban on snus that was only available for sale in Sweden under a derogation.
Upon a request by her lawyer, Giannella de Marco, the prosecution declared at the outset that no criminal action was to be taken against Kimberley.
The witness then started off by recalling how she had been approached by Johan Gabrielsson, public affairs director at Swedish Match, and requested to organise a meeting with then-Commissioner Dalli.
The EU directive banning smokeless tobacco was about to be revised and Swedish Match wanted to submit new scientific evidence related to snus and forward their proposals to the Commissioner overseeing those legislative changes.
She mentioned a colleague who worked at the Malta Gaming Authority who was a friend of Zammit.
Zammit was subsequently charged but died last year while proceedings were still pending.
Kimberley said she confirmed with Gabrielsson that she could organise a meeting with Dalli and she was engaged as a consultant for Swedish Match.
Meeting with Dalli lasted 20 minutes
Gabrielsson then travelled from Brussels with another company official for the purpose of briefing Kimberley about their proposals on snus and why the ban was no longer valid, particularly in respect of claims linking the smokeless tobacco to cancer.
They stayed at the Hilton and held a one-day workshop, during which the Maltese lawyer was briefed on scientific material and the discrimination between cigarettes and smokeless tobacco.
Following that workshop, she prepared the necessary documentation and asked Zammit to set up a meeting with the Commissioner, subsequently informing Swedish Match of the upcoming appointment.
The meeting with Dalli took place at Portomaso and was a 20-minute affair.
Zammit and Iosif Galea were also present, recalled the lawyer. Galea, who used to work with the Malta Gaming Authority, was a common friend to her and Zammit and helped organise the meeting with Dalli.
Kimberley said the Commissioner was “very sceptical” when she put forward her arguments for lifting the ban, supporting her claims with scientific evidence.
According to Dalli, scientists had corporate interests.
And if the ban was to be removed it would create chaos.
"There has to be a foolproof basis to overturn the ban,” the witness recalled Dalli saying.
She reported back to Swedish Match who asked her to set up a second meeting to submit their proposal, backed by research.
So Kimberley went back to Zammit to arrange another meeting with the Commissioner, passing on to him five points for discussion.
She had given Zammit three scientific documents to hand over to Dalli asking him to nominate someone from his cabinet to hear their side.
She also asked which "friends" were to be lobbied at Commission level, pointed out that profit was to be analysed to show the disproportionate effect of the ban with other competing products, and asked how Dalli intended to proceed with the ban.
She later received a call from Zammit who suggested a meeting so that he could give her feedback on those points.
Zammit subsequently told her that the Commissioner was not going to nominate anyone from his cabinet and said he had no particular friend at Commission level.
Zammit was the only contact person
Zammit also told her that if Swedish Match wanted to proceed with discussions, they were to speak to him.
She passed on that message to Gabrielsson who a couple of weeks later travelled to Malta to speak to Zammit.
Dalli’s former aide had made it clear that he was the “only contact person” and the only way forward was through “one-to-one meetings”.
Kimberley accompanied Gabrielsson to a meeting at Zammit’s Sliema restaurant in mid-February.
It was during that meeting that Zammit had told the Swedish Match representative that he could help with lobbying to lift the ban on snus, putting a price tag of €60 million.
“You want help to lift the ban. I can help. I’m your sole contact but I want €60 million,” said Kimberley, recalling Zammit’s words.
“I can organise high-level meetings,” Zammit had said.
Gabrielsson could not commit to that request before reporting back to the company.
Asked by AG lawyer Antoine Agius Bonnici whether Zammit had said anything else, the witness said he had given no explanation and no breakdown of that €60 million figure.
Later, upon returning to Brussels, Gabrielsson contacted her to tell Zammit that Swedish Match did not wish to proceed.
He later sent her another email asking about a press release about the snus affair, but she was no longer engaged as a delegate for the tobacco company at the time.
Cross-examined by Dalli’s lawyer, Stephen Tonna Lowell, the witness confirmed that she had not been registered as a lobbyist.
When testifying against Dalli during a previous sitting, Kessler had told the court about his meeting with Kimberley.
“In what circumstances did that meeting take place,” asked the defence lawyer.
The witness recalled a first meeting which had taken place in Portugal where she was on work-related duties.
Kessler had “ambushed” her as she left the breakfast room and directed her into a room, telling her that he wanted to speak to her and warning that as a public official she was bound to answer his questions.
She was not given a right to a lawyer and was not shown a warrant.
That was around 9am, Kimberley recalled, explaining how she was questioned for some five hours at a stretch.
She had explained to Kessler about her brief meeting with Dalli and denied ever attending a second meeting.
He refused to believe her and only did once confirming that, on the day of that alleged second meeting, a public holiday, she was caring for her son.
That was when he believed her.
“Ok, let’s go to eat,” Kessler then told Kimberley, taking her to a restaurant, ordering food and offering her wine.
“I had been in there since 9am and had not eaten anything,” she recalled.
Meanwhile, Kessler had instructed an official to type out her testimony.
But since they were running late, they had printed it and asked her to sign without giving her time to read through the script.
Transcript amendments requested
Before OLAF investigators came to Malta for another interview, she had requested a copy of that first transcript.
They sent it a couple of days before their second meeting at Valletta and were not too happy when she requested some amendments.
Thanks to her lawyer’s insistence, she managed to get those amendments done.
When she testified before OLAF a second time, it was all recorded.
“I did not trust,” finished off the witness.
The case continues in May.
AG lawyer Anthony Vella also prosecuted together with Inspector Andy Rotin. Lawyers Stefano Filletti and Stephen Tonna Lowell were defence counsel.
The case is being heard by Magistrate Caroline Farrugia Frendo.