European Ombudsman
European Network of Ombudsmen
Related documents
Utrecht, Netherlands, 08 June 2012
Ladies and Gentlemen! I would like to start by congratulating the organisers of this Transatlantic Conference on Transparency Research for their important initiative. This initiative, which was inspired and put together by Professor Deirdre Curtin and her colleagues, Dr. Albert Meijer, Dr. Stephan Grimmelikhuijsen and Danielle Fictorie, will, I hope, serve to energise and deepen the debate on transparency.
The EU is in deep crisis. The economic stresses and strains throughout the Union have immediate and significant social and political impacts at the European, the MemberState, and the international levels. The EU, a construct which grew and gained legitimacy on the back of its capacity to create an environment where MemberStates and EU citizens could prosper, is now increasingly questioned. This questioning of the EU as a project is, among others, reflected in a diminishing trust which many EU citizens exhibit towards the EU and its institutions.
The benefits which the EU has brought to its citizens, not only in terms of economic prosperity, but also in other important areas, such as the environment, social equality, and respect for human rights, were hard won over many decades of patient and dedicated work. These gains are worth preserving. But how can we help ensure that these hard won gains are not lost?
I am not so naive as to presume that there is a single issue, which if resolved, will put an end to this crisis. Clearly, the efforts to put in place economic, political and technical elements capable of achieving stability in the euro and the economies of the Member States are foremost in our minds. However, the crisis in the Union will not be resolved even if we deal successfully with the economic crisis.
The economic crisis has laid bare a deeper malaise in the Union. That malaise is the diminishing level of trust in the Union and its institutions.
I am convinced that we can contribute to dealing with this crisis by redoubling our efforts to preserve and even deepen the trust citizens have in the Union and its institutions. Transparency and open government are key elements in maintaining and deepening this trust.
Transparency and open government maintain and deepen trust by facilitating dialogue between EU citizens and the EU institutions. If the EU institutions do not do their utmost to take citizens' concerns, opinions, and suggestions into account, their trust in the European Union will decrease further.
In this context, I applaud the efforts of the organisers of this conference for their choice of theme. By bringing together scholars from various disciplines, such as public administration, law, political science, journalism and sociology, to discuss transparency and open government, they help us identify clearly the challenges facing us and search for effective means of dealing with such challenges.
As I am sure you know, transparency is not an end in itself. Rather, transparency is a tool for empowering citizens in the context of the dialogue they seek to maintain with public authorities. Transparency creates a level playing field where all citizens have access to the necessary facts and arguments to engage in effective dialogue with such authorities.
Transparency not only enables citizens to engage in this dialogue, it also encourages them to do so.
The dialogue which results from transparency has enormous benefits, especially for the EU institutions which citizens perceive to be distant and excessively complex. This perception is not surprising, given the nature of the EU, which has institutional structures and decision-making processes that are indeed more complex than is the case at the national level. To be sure, this complexity is not there for complexity’s sake. It results essentially from the need to give Member States an effective voice, through the Council, from the need to give citizens a more direct means of representation, through the European Parliament, and from the need to have a separate independent institution, the Commission, which represents the interests of the Union. Nonetheless, this complexity constitutes a challenge which must be dealt with if citizens are to gain and maintain trust in the EU. Informing citizens how EU institutions function and making clear the considerations that drive their decision-making processes, renders EU institutions more accountable to citizens.
Such accountability has a real impact on the output of the institutions insofar as this output is more likely to reflect the citizens' real concerns.
The EU institutions' obligation to "maintain an open, transparent and regular dialogue with representative associations and civil society", enshrined in Article 11(2) of the TEU, constitutes a crucial step forward on the long road to strengthening the right of citizens and associations to participate in the democratic life of the European Union.
To be fair, as an ombudsman must always strive to be, all EU institutions are already making efforts to engage in a dialogue with civil society, and indeed began doing so well before the Lisbon Treaty came into force.
The very "raison d'être" of institutions like the Committee of the Regions and the European Economic and Social Committee, as well as the Petitions Committee of the European Parliament is, in fact, to engage actively in dialogue with civil society and individuals. Furthermore, the European Commission has made an impressive effort in recent years to conduct a regular dialogue with all segments of civil society.
My own institution was also established with an eye to, among others, fostering this dialogue and to providing a "human face" to whom European citizens may turn when they encounter problems with the EU administration. There are, therefore, many mechanisms for dialogue and citizen participation in place, which need to be extended and further developed.
Without transparency in the work and decision-making of the EU institutions, no genuine dialogue or citizens' participation can take place. Transparency, in fact, constitutes a precondition for this very dialogue. As I just indicated, the EU institutions have done a lot to improve transparency in recent years. The Commission's Transparency Initiative and the introduction of the Transparency Register are two examples, but there are many more to which I could refer. A lot remains to be done, however.
Last year, together with the European Parliament, the Ombudsman commissioned a Special Eurobarometer on citizens' rights and the performance of the EU administration. Of the persons questioned in this survey, 42% were not satisfied with the level of transparency in the EU administration.
This assessment coincides with my own experience. Every year, the European Ombudsman receives around 3 000 complaints from citizens, businesses, NGOs, civil society organisations, and associations, and opens hundreds of inquiries into alleged maladministration by the EU institutions. Again in 2011, the most common allegation examined by the Ombudsman was lack of transparency in the EU administration. This allegation arose in 25% of all closed inquiries and included refusals to provide information or to give access to documents in 2011. I remain very concerned about the findings of the survey and the consistently high number of transparency-related complaints, since an accountable and transparent EU administration is key to building citizens' trust in the EU.
A range of articles in the Lisbon Treaty now provides for greater transparency in the activities of EU institutions. To give one example, the Treaty includes a provision for the Council to meet in public when it deliberates and decides on draft legislation. I have long argued that full transparency of the legislative process in the Council would strengthen both national and Union citizenship. It would let Europeans see what the governments they have elected as national citizens are doing at the European level. It would also allow them, as Union citizens, to monitor more effectively the work of a vital EU institution, thereby promoting accountability.
The Treaty also requires other Union institutions and bodies to conduct their work as openly as possible, in order to promote good governance and ensure the participation of civil society.
Article 42 of the Charter of Fundamental Rights is especially important in this context. It provides that citizens shall have a right of access to the documents held by the Union institutions. This provision constitutes a significant improvement with respect to past practice, since it extends the right of access not only to documents held by the European Parliament, Council, and Commission, but also to those in the possession of all other EU institutions, bodies, offices, and agencies, including, for the first time, the European Council.
Let me add a few thoughts about improving the procedures for dealing with requests for access to documents.
I sometimes have the impression that many of those who work in the EU institutions do not think about public access until they actually receive an application for access. In my view, good administration includes having public access in mind at the moment documents are drafted. The drafting process should aim to ensure that citizens, organisations, and businesses can have the widest possible access to documents. If a document must contain confidential information, then that document should, as far as possible, be drafted so as to facilitate partial disclosure. That can be done by putting the confidential material in a separate section of the document, preceded by (a) a non-confidential explanation of why the material is exempt from disclosure and, wherever possible, (b) a non-confidential summary.
If documents were drafted in this way, less time would be needed to deal with applications, fewer confirmatory applications would be needed, and the institutions would be better able to respect the deadlines.
To facilitate public access to documents, I have repeatedly called for the appointment of information officers in the EU institutions and bodies. Their role should be to secure citizens’ rights of access to EU documents by encouraging the institutions to adopt a proactive approach, as well as ensuring that they react correctly to requests for access.
In practice, that would mean providing advice and training so as to ensure that the right of public access is taken into account at the stage when documents are being drafted.
Another important consideration to bear in mind when talking of pro-activity is the need to create useful, citizen-friendly, online registers of documents that not only inform citizens of the documents available, but, wherever possible, make those documents directly accessible through a link. In this way, the citizen can obtain the document directly, without having to make an application for access.
The EU institutions already make a vast number of documents accessible on-line. But mere quantity is not enough. The good administration of access to documents involves making available the documents that people actually want and presenting them in such a way that they can be easily identified and accessed.
Such a course of action means that the register should be based upon an analysis of the workflow in the institution and should be continuously adapted to take account of new and changing activities. Documents should be regularly and promptly added to the register.
The creation and maintenance of such a register is an essential aspect of engaging with citizens. Such engagement should be seen as part of the core business of every institution, and as a means of helping the Union fulfil its promises of transparency, participation, and good administration. The aim should be to ensure that, unless there are valid reasons to restrict access, people can immediately obtain the documents they need through the register without having first to submit an application. Any restriction of access should be properly justified on a case by case basis.
We have here today researchers from across the Atlantic, from both North and South America. In this context, I therefore think it worthwhile to mention that the US government has set up a single website for all rulemaking proposals originating from nearly 300 federal agencies. The aim of this website is to make it easier for the public to find out about proposals and to participate in the regulatory process. Moreover, in order to stimulate dialogue, comments from the public are published while rulemaking is ongoing rather than when it is finished.
In its genesis, the European project saw no need to involve citizens in law making. The original treaties reserved rulemaking to the Council and the Commission. Mercifully, we have come a long way from those days.
The Lisbon Treaty reinforces the powers of both the European Parliament and national parliaments in the law-making process. The greater role for national parliaments gives citizens and organised civil society at the Member State level the opportunity also to be involved in Union law-making within their national democratic framework, where some of them may feel better able to participate than at the Union level.
Moreover, the European Commission must carry out broad consultations with parties concerned, in order to ensure that the Union's actions are coherent and transparent. The Commission is already undertaking great efforts in its public consultations, with a view to allowing citizens, associations, and other stakeholders to participate in the EU's decision-making process.
Again, however, there is room for improvement. To give an example: I recently investigated a complaint about the fact that many public consultation documents are only available in English or in a limited number of EU languages, even if they are intended for the general public. I concluded after my investigation that European citizens cannot be expected to participate in a consultation which they are unable to understand. Multilingualism is essential for citizens to exercise their right to participate in the democratic life of the EU, which is guaranteed by the Lisbon Treaty. I called on the Commission to revise its restrictive language policy and to publish its public consultation documents in all 23 EU languages or to at least provide translations upon request.
Let me immediately say that I am acutely aware that multilingualism puts a heavy burden on the EU administration and its limited resources. However, I am also persuaded that it forms an essential part of the EU's ability to engage in a fruitful dialogue with its citizens. If the EU institutions want to be seen as engaging in a sincere dialogue with citizens and civil society, they have no choice but to take this important principle into account.
Another crucial instrument for citizens' participation through dialogue, deriving from the Lisbon Treaty, is obviously the European Citizens' Initiative. In essence, the European Citizens' Initiative or ECI is a highly structured form of dialogue, which places specific requirements on the EU institutions, primarily the Commission, to engage with citizens. It also gives citizens a stronger voice - a voice which must be listened to.
Through the ECI, one million citizens from at least seven Member States will have the possibility to call on the Commission to bring forward new legislative proposals. Properly used, it should make a vital contribution to the empowerment of European citizens, through dialogue.
I note from the Commission's website that, by the end of May 2012, there were already six ECIs dealing with issues such as the right to vote, the use of human embryos in research, the welfare of dairy cows, the provision of clean water, roaming fees and, finally, the enhancement of EU exchange initiatives, such as the Erasmus programme.
The Ombudsman is available as an alternative redress mechanism in case individuals and organisations are not satisfied with the way that their citizens' initiatives have been handled by the EU administration. In short, I will seek to ensure that the voice which the European Citizens' Initiative provides is not muffled.
Let me give you some examples of potential concerns that might be brought to my attention in this context: The Commission must decide within two months whether it will register an initiative. Problems could include failure to reply to organisations wishing to register an initiative, delayed replies, or lack of transparency.
Furthermore, the Commission can refuse to register an initiative, for example, because the proposed field of action does not fall within the competence of the EU. Organisers may challenge this decision in a complaint to the Ombudsman, as well as by going to court.
The Commission has three months to examine an initiative which has received one million signatures and to explain which actions it will take. The Ombudsman could examine whether the Commission's conclusions are reasonable and thoroughly explained.
It is important to point out what the Ombudsman cannot do in this area. Specifically, the Ombudsman cannot examine the substantive follow-up which the Commission decides to give to citizens' initiatives. This is, rather, a political matter for the European Parliament to monitor.
In my view, all segments of civil society, be they NGOs, businesses, religious or philosophical organisations, or any other interest representatives, as well as individual citizens, have to be heard. However, I agree that it is very difficult, in practice, to give all segments of civil society an equal say in the different ways that the EU institutions conduct their dialogues. Nevertheless, all EU institutions have to address this problem, establish clear rules as to whom they are consulting, and define how they propose to maintain a balance between different interest groups.
Let me now come back to Article 11(2) of the TEU on the open dialogue between citizens and the institutions. From the Ombudsman's perspective, it is clear that, as a matter of good administration, the institutions should be able to point to concrete measures that are properly and effectively implemented.
I regard the complaints that I receive from citizens and associations as important indicators of whether certain Treaty provisions or other rules are properly implemented. As yet, we have not received any complaints specifically based on Article 11 TEU, though we have, as I mentioned, dealt with complaints about the Commission's public consultations.
The Ombudsman is, however, currently dealing with a complaint from the European Humanist Federation, based on Article 17(3) of the Treaty on the Functioning of the European Union, which requires “an open, transparent and regular dialogue" with churches, religious associations or communities, philosophical and non-confessional organisations. In the framework of our inquiry, we have asked the Commission to comment on its understanding of the relationship between the more general provisions of Article 11 TEU and Article 17(3) TFEU.
We have received the Commission's opinion and the complainant's observations in this case. My legal officers are currently examining the opinion and the observations, with a view to advising me on the next steps to take in this important inquiry.
These concrete cases about the implementation of Article 11 and Article 17 are extremely important, not only for all segments of civil society but also for the EU institutions, because they have a direct bearing on how the obligation to conduct an open dialogue as fairly and non-discriminatorily as possible will ultimately be implemented. This clearly is work still in progress.
Let me now conclude. I trust we can all agree that important mechanisms for establishing and maintaining dialogue between civil society and citizens on the one hand, and the EU institutions on the other are already in place. Many of them, however, such as Parliament's Petitions Committee, the Ombudsman, or the possibility to lodge infringement complaints with the Commission could be used more. And, to be sure, all of these procedures are open to every European citizen and resident.
The Lisbon Treaty and the Charter of Fundamental Rights have added more provisions to increase dialogue and citizens' participation. These include Article 11(2) of the Treaty on European Union, the European Citizens' Initiative, and enhanced openness and transparency in the EU decision-making process. Most of these mechanisms are already being used, but mainly by those civil society representatives who are involved in EU policies and know the complex decision making procedures.
In the present trying times, however, we must strive to make sure that these mechanisms work effectively. In order to do so, however,, they must be fully grasped and understood. I therefore applaud the efforts of the conference organisers and of the researchers present here today in making transparency the central theme of their deliberations. As I said at the beginning of my remarks, transparency is not an end in itself. It is rather a means to end. And the end cannot be other than contributing to the deepening to the rule of law and to the strengthening of democracy in the EU, in the process hopefully (re)gaining citizens' trust. I look forward with deep interest in hearing your insights and reflections on these important issues. I am, as they say, all ears.
