Emily O'Reilly
European Ombudsman
Keynote at Irish Netherlands Business Association
19 March 2015, Sofitel The Legend Grand, Amsterdam

Mr President, Minister Phelan, Ambassador, ladies and gentlemen, it is a privilege and an honour to be here with you this evening at this event which celebrates the friendships and ties between Ireland and the Netherlands and during a week when we Irish manage to amuse half the world and confuse the rest by persuading otherwise sane countries not just to pretend to be Irish for a day, but also to turn their most precious, iconic and historic monuments bright green.

(Personal remarks)

Now before I begin the more serious part of my talk here this evening I should mention that my heart sinks whenever I am invited to speak about my role as Ombudsman to an audience such as this. It doesn’t sink on my own behalf but rather on yours. The tickets arrive; cocktails, great, dinner, great, networking great, dancing, fantastic, and then oh my God, twenty minutes on European public administration. So, I am now about to make an heroic effort to show and tell what I do before you are released from your seats and can get down to the schmoozing part of the evening.

I was Irish Ombudsman for ten years following over 20 years as a journalist and specialising mainly in politics. In 2013, the opportunity arose to run for the post of European Ombudsman as the then Ombudsman, Nikiforos Diamandouros was stepping down a year before his term of office was due to expire. The appointment of the office holder is somewhat unusual is that unlike EU Commissioners, judges or auditors, the candidates are not member state Government nominees. It’s a solo run by an individual and the only institution involved in the appointment is the European Parliament which votes on those candidates who manage to get the support of a set number of MEPs in the initial signature collection phase of the contest.

And so, for three months, over and back between Dublin, Brussels and Strasbourg, I had to become in effect a politician, or at least a candidate in a race the winner of which would be chosen by politicians. I thought I knew politics well from my vantage points of political journalist and later watchdog of Government departments, but nothing prepared me for the stress and hell of an electoral campaign. Two days in, I was bitterly regretting every nasty, sneering word I’d ever had to say about those people who do this for a living.

Add to that my claustrophobia (I never take a lift) and my fear of flying and I had created the perfect storm of anxiety as I spent days and weeks pounding up the stairs of parliament buildings in Brussels and Strasbourg and self-medicating on warm Sauvignon Blanc and Pringles on my flights over and back.

But pretty quickly, I began to learn the value of such a campaign, the value of having to make a pitch, think on your feet, adapt to a multicultural landscape, curb your own national prejudices and critically to put together a credible narrative of what exactly you intend to do once in office. I imagine that the business challenges for those like you who set up in a country not your own are similar.

My ten year term as Ombudsman and Information Commissioner was an obvious advantage. I knew the general territory and its hinterland. I knew the language, I knew what it takes to be a good Ombudsman, the piece that was missing was the European piece, how does an Ombudsman add value to the work of Institutions, to an entity that is sort of like a Government but does not do the things that Member States do directly for their citizens and which are the stuff of the case load of Member State Ombudsmen – housing allocations, benefits, pensions, education, and all manner of grants and allowances.

Yet the Office was initially created, 20 years ago, precisely with the citizen in mind. Such was the increasing power of the EU institutions that a view formed – which finally found expression in the Maastricht Treaty – that an independent, accessible, and free to use independent watchdog was needed to act in effect as a check on the power of the institutions, agencies and bodies of the European Union. Every EU citizen has a right under the Treaties and now the Charter of Fundamental Rights a right to good administration and a right to take a complaint against any EU institution or agency or body to the European Ombudsman.

The office’s first few years, under the stewardship of the former Finnish Ombudsman Jacob Soderman, were modest, with just a handful of staff and faced with a struggle for visibility and credibility. Both increased over the next few years and Soderman’s successor and my predecessor Nikiforos Diamandouros, advanced the office further attracting more significant cases, creating a network of Member State Ombudsmen and producing guides to good administration and conduct.

So, with the office now approaching its 20th year, how was I going to bring it on to the next stage of visibility and relevance? My experience of the office, from the vantage point of a member state Ombudsman was useful, as I already had a grasp of how it worked, how it was viewed, and where the opportunities were for further growth, or as I used to put it to the MEPs, for making it more useful.

In some ways, the solution was obvious. There had to be a circle where visibility meant relevance meant impact meant more visibility and so on. I needed to focus on those areas where I could add value and which in turn would either attract more important cases or cause the institutions to bring about systemic change the trickle-down effect of which would bring about improvements for many people and not just for individual complainants.

The power I would use would be in my view the biggest one in my kit, the power of own initiative inquiry, whereby I can choose to investigate an issue even if I have not received a direct complaint about it. In addition to my right to see any documents I need, or to ask questions of any official relevant to an investigation, I could attempt to bring the work and unique powers of my office to bear on issues of significant public interest or to issues of important principle.

So very quickly, I appointed a member of staff to co-ordinate the OIIs as they are called and I apologise for bringing yet another obscure acronym into the world. I then brainstormed with my own office, but also with business groups, civil society groups, consumer groups, MEPs; I also of course scanned the media and pretty quickly came up with an initial list of investigations which began to be rolled out from the middle of last year.

Probably the most high –profile one to date concerns the Trans-Atlantic Trade and Investment Partnership, or TTIP, the EU/US trade deal that is currently being negotiated. I didn’t have to look too far to note the great clamour for greater transparency round the negotiations or the fact that in some countries this emerged as quite a big issue during last year’s European Parliament elections.

I began with a short public consultation, asking people precisely to define what they meant by greater transparency, what was missing, what did they want, what was reasonable to expect in the context of a high stakes trade agreement negotiation. A subsequent recommendation by me to the European Council to release the negotiating mandate – widely available through Google in any event – was accepted and I then followed through with a series of recommendations to the Commission.

I have just received the Commission’s final response and I am analysing it. In the meantime this new Commission, committed as it says to greater transparency, took a decision to publish online many of the negotiating documents that the previous Commission had refused to. I am not of course the only player in this, the parliament is also looking for more transparency, and in addition my work is being facilitated by the very definite change in mood music as between this Commission and the last and notably in the area of transparency. However, for the moment, the flow of documents is largely from one direction, that of the EU. As time goes on and the consolidated texts of what has been agreed become available, pressure will mount for those to be released to the public, and so far the US does not appear to be as transparency friendly as the EU.

Other investigations, some still ongoing, include an evaluation of the independence and balance of the expert groups that advise the Commission, an examination of how the Commission deal with the conflicts of interest that might arise when private industry attempts to recruit highly influential and well informed EU officials; how the Commission deals with the European Citizens Initiative which allows one million citizens to petition the Commission for a new law; how the EU border agency Frontex conforms to its human rights obligations, and how the Institutions deal with their new obligations under EU whistleblowing rules.

And alongside these investigations, I continue to deal with single complaints. Some are mundane, but some speak to issues of significant interest to business in particular and this particular audience might be interested if I talk briefly about a few of them.

The most recent, involving a Commission investigation into an alleged cartel involving among others the French bank Credit Agricole, was published two weeks ago. Lawyers for Credit Agricole had complained that comments made by the former Competition Commissioner Joaquin Almunia about the ongoing investigation displayed bias. My investigation concluded that the comments did give the appearance of bias and could also give the impression that the Commission had already formed a view of the case. I recommended to the Commission that it take steps to instruct Commissioners on the need for public discretion when investigations are ongoing.

At the end of 2013, we concluded another case concerning the same Commissioner, although I should point out that in all cases the subject of our inquiries in the institution, and not an individual per se. This case, known informally in the office as ‘the football case’ was sent to us by a representative of investors in European soccer clubs. The individual claimed that the Commission had not acted on their allegation that Spanish tax laws concerning some of their top football clubs, Barcelona, Real Madrid and Atletico Bilbao among others, amounted to illegal state aid.

Our investigation found that the Commission had taken an abnormally long time – four years as opposed to a more usual 18 months – to decide on whether or not to open infringement proceedings. We pointed out that not only was this unusual, but that, as the Commissioner was Spanish and had been part of the Government that introduced those particular tax laws, that there was a danger of the Commission appearing to have a conflict of interest. Following our involvement in the case, a decision to open proceedings was pretty quickly taken and that is ongoing. I should point out that I have nothing to do with the substance of the case; my role is restricted to monitoring the administrative behaviour of an EU institution. I should also add as a post script that the widespread publicity given to that case – due to global interest in soccer alas and not to global interest in the European Ombudsman – did prompt a complaint from Diego Maradona although sadly it was not within remit.

Another business case involved the Ryanair company and was submitted some years ago when Ryanair was attempting to make a bid to buy Aer Lingus. Ryanair claimed that the Commission had leaked certain information about that bid. Our investigation could not prove that the Commission had leaked information as alleged but as a result of it, the Commission changed its procedures in relation to the appropriate flow of information in these cases.

An earlier case involved the Intel corporation and their claim that they had not been given sight of relevant documents during a Commission anti-trust investigation. Maladministration was found on the grounds that the Commission had failed to make a proper note of a meeting with computer manufacturer Dell. On the back of this, the Commission changed its procedures in relation to the documentation of key meetings.

A long running case, or issue, concerned the European Medicines Agency, based in London and which is responsible for evaluating and authorising the sale of medicines in the EU. Some years ago, a complaint came from the Irish father of a young man who had taken his own life during a period when he was on the anti-acne drug Roaccutane, a drug with some psychiatric contraindications. The father was seeking records relating to clinical trials of the drug from the Medicines Agency. Sometime later a similar access request was made from a group of researchers in relation to an anti-obesity drug. Following a lot of interaction, the records were released and over the last number of years the Agency has moved to transform its transparency policy and to adopt a proactive approach to the release of clinical trial data. There has, unsurprisingly, been a lot of intervention from some elements of the pharmaceutical industry in all of this, with claims made in relation to breaches of patient confidentiality and to the release of commercially sensitive information. I have always maintained however that clinical trial data never contains the recipe for the drug, but rather that happens to your body once you’ve tasted that recipe.

One other case with an Irish dimension concerned a letter sent by the former head of the European Central Bank, Jean Claude Trichet to the then Irish Finance Minister, the late Brian Lenihan, in November 2010 and just before the Government had seek a bailout. The letter had been sought and refused by an Irish journalist who then approached my office with an access request. The ECB initially refused to release the letter but then finally did so in the wake of a series of bank stress tests carried out last year. The letter contained no surprises even

if the tone might have been seen to be a little heavy-handed and as I said to Mr. Trichet’s successor, Mario Draghi, keeping these records secret, long past the time when they could conceivably do harm raises suspicions and distrust in countries that are already losing faith in both their own and in European institutions.

And just this week I concluded an investigation into the European Investment Bank’s refusal to release a report into alleged tax evasion concerning a mining company in Zambia which had been given an EIB loan. I found that the report summary eventually given to the complainants did not fully convey its contents and conclusions.

Before I conclude I would like to make some more general and personal observations about the year and half or so that I have spent working in an EU institution and seeing close up the contemporary working through of what is still essentially a political project.

I can see as someone whose role is to bring the citizens and the institutions closer together in understanding, how the bureaucratic and other barriers continue to militate against this. The EU administration at times appears unknowable even to insiders. The jargon, the result of frequently well-meant linguistic, cultural and political compromise, is bafflingly obscure with officials and others tossing about acronyms the translation of which is available only to a few.

It comes across as elitist and exclusionary and both intimidates and alienates the citizen. In addition, the high wattage focus on things fiscal, financial and economic over the last six plus years has further created a feeling that the EU is not actually about the quotidian concerns of citizens and of their families. Some countries focus on rules, others on the mundane tasks of finding food for their poorest to eat and basic services to keep them well. Maintaining solidarity has been and continues to be the vital task of our political leaders and we can see that particular dynamic currently being played out in the battle of wills between Germany and Greece or more particularly between Mr Schauble and Mr Varoufakis.

But alongside the EU in perpetual crisis narrative also runs the story of a Europe that this generation of young people happily takes for granted as they roam around it freely, working, studying or travelling. Yes, not every young man or woman is privileged enough to be able to avail of the opportunities but for many this interconnectedness is simply taken for granted, it’s a given, and it is rarely framed by them in the economic and political terms used by their elders or accompanied by agonised handwringing over the latest crisis.

And every day, that union of those young people deepens through the accumulation of more of these connections through work, through education, through enterprise and through the simple act of travel itself. Like you I have no idea what lies ahead politically for this Union, but I do know that its unravelling becomes more unimaginable, and particularly for our young people, with every day that passes as the knots that bind it at least socially and culturally become deeper and tighter

To conclude; I come from a generation of Irishwomen for whom accession to the EU meant liberation, the freedom to work for equal pay, to remain in the workforce on marriage and many other liberties that successive Irish governments had refused to give its female citizens. I am here today because I was gifted by this great political project that which my own country standing alone refused to gift to my mother and to her generation of women or to the generations before that.

The challenge for the EU today is to have today’s young women and young men, perhaps from Greece or Spain or Portugal, from those countries currently enduring heavy youth unemployment, able to stand in ten or twenty years time at a forum such as this and declare that for them this dream of an ever closer union of the people enabled them too to live their lives to the fullest flowering of their potential and of their dreams.