The European Commission has acknowledged that one of its officials may have passed a letter described at the Moriarty tribunal as "confidential" to a lawyer representing Esat Telecom in July 1995.
But a spokesman insisted the leak could not have given the company an advantage in bidding for the second GSM licence because Mr Michael Lowry had told the Commission its contents were already known to all the bidders.
The spokesman confirmed one of the Commission officials has agreed to testify at the tribunal.
The spokesman declined to identify the official but The Irish Times has learned it is Mr Christian Hocepied, a senior official at the Commission's Competition Directorate General, who was involved in negotiations with the Government over the licence award. There is no suggestion that Mr Hocepied was responsible for any leak that may have taken place.
The tribunal heard last week that a letter from former competition commissioner, Mr Karel Van Miert, to the former minister for transport, Mr Michael Lowry, was discovered in the files of Esat Telecom. The letter was sent on July 14th, 1995 and detailed the Government's plans to limit the weighting of the auction aspect of the bids to less than 15 per cent, thereby giving other aspects, such as the technical capacity of the applicants, greater weight.
The applicants were given a list of criteria under which their bids would be judged. Although the criteria were listed in order of importance, the bidders were not given the relative importance, or "weight" of each criterion.
The letter had apparently been faxed to a director of Esat Telecom by a Brussels-based lawyer, Mr Jarlath Burke, who at the time had the title of chief regulatory counsel for the company. A cover letter on the fax, dated July 24th, 1995, noted that Mr Burke was enclosing a copy of the commissioner's letter in the transmission.
A Commission spokesman said yesterday it was possible an official had furnished Mr Burke with a copy of the letter on July 24th, 1995. "We cannot exclude that someone might have sent it as a courtesy to Esat. We cannot exclude that it might have come from here," the spokesman said.
But he said that there was no question of such an action compromising the bidding process because Mr Lowry had already informed all bidders of the letter's contents on July 14th, 1995.
The spokesman said that, according to a Commission official who dealt with the case, Mr Lowry told the Commission he had informed the bidders about the letter and invited them to resubmit their bids.
"It is this official's clear recollection that, after he received the letter, the minister communicated to the Commission that he had informed all the bidders of its contents on July 14th," he said.
Commission officials say the letter was not confidential and they do not believe it was marked as such. They suggest that the fact that all bids for the GSM licence were below the level of the cap shows they were all aware of the Government's intentions.
"This is not really something very sensitive. That letter does not contain a single business secret. The decisive element is that the content was immediately communicated to all the bidders. Esat did not get any information that was not already available. The information was no longer secret," the spokesman said.
The spokesman said an internal check had not found any leak but he added that leaking such a letter would not be regarded as a serious offence. He said the Commission was happy to co-operate fully with the Moriarty tribunal. The Commission had sent its entire case file to the tribunal over a month ago.
"The Commission officials involved in the case will testify at the tribunal. We are actively co-operating with this investigation. We have nothing to hide and we have done nothing wrong," he said.
The tribunal resumes today when tribunal counsel Mr John Coughlan SC will continue reading out his opening statement on the licence competition inquiry. He has already been reading for four days.
