European Ombudsman
European Network of Ombudsmen
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1. The Ombudsman launched, in May 2011, a programme of visits to EU agencies, with the aim of identifying and spreading best practices used by the agencies in their relations with citizens. He had previously already carried out three "pilot" visits to the EU agencies in the United Kingdom, i.e., the European Banking Authority, the European Medicines Agency and the European Police College. Subsequently, in October, the Ombudsman visited the European Environment Agency in Copenhagen. On 18 October 2011, the Ombudsman wrote to the Director of the European Maritime Safety Agency (EMSA) and announced that he would like to visit the Agency. The date proposed was agreed to and the visit took place on 22 November 2011.
2. The main objective of the European Maritime Safety Agency (EMSA) is to reduce the risk of maritime accidents, marine pollution from ships and the loss of human life at sea. The Agency has been charged with the following responsibilities:
a) assisting the Commission in monitoring the implementation of EU legislation (ship construction and planned maintenance, ship inspection and the reception of ship waste in EU ports, certification of marine equipment, ship safety, the training of seafarers in non-EU countries and Port State Control);
b) developing, operating and maintaining maritime information capabilities at the EU level, for example, (a) the SafeSeaNet vessel tracking system, designed to help track vessels and their cargoes throughout the EU; and (b) the EU LRIT Data Centre, to ensure the identification and tracking of EU-flag ships worldwide); and
c) helping to develop a common methodology for investigating maritime accidents.
3. EMSA was founded in 2002 and commenced operations in 2003. Its headquarters are in Lisbon, Portugal. A major political impetus for setting up EMSA was the fallout from the Erika (1999) and the Prestige (2002) accidents and the resulting oil spills which caused huge environmental and economic damage to the coastlines of Spain and France. Today, EMSA plays a major role in organising the European oil spill preparedness and response activities. These include setting up a network of stand-by oil response vessels and equipment, which are available on demand to assist Member States. In parallel and with an eye to contributing to an effective system for protecting EU coasts and waters from pollution by ships, EMSA has developed its marine pollution preparedness, detection and response capacity, including a European satellite oil spill monitoring service (CleanSeaNet).
4. EMSA was established by Regulation 1406/2002 of the European Parliament and of the Council of 27 June 2002[1] subsequently amended by Regulation 1644/2003 of 22 July 2003[2] , by Regulation 724/2004 of 31 March 2004[3] and by Regulation 2038/2006 of 18 December 2006[4].
5. To date, the European Ombudsman has conducted virtually no inquiries concerning the European Maritime Safety Agency (EMSA). In fact, in the last five years only four complaints have been submitted to the Ombudsman against EMSA. Three of them were deemed inadmissible and in one the Ombudsman found no grounds to justify opening an inquiry. Given EMSA's importance and the obvious public interest in the issues it deals with, this very low number of complaints cannot be interpreted as the result of a lack of public awareness of the Agency's existence or of its activities. On the contrary, it should be taken as a sign that the Agency successfully manages to integrate good administration into its procedures and working methods. The Ombudsman was, therefore, particularly interested in familiarising himself with EMSA's best practices and in deriving insights that could potentially be used in the future, with an eye to sharing best practice among the various EU agencies.
6. In advance of his visit, the Ombudsman forwarded to the Agency a note containing the substantive points that he wished to discuss with management. The Ombudsman also informed the Agency that he would be meeting with EMSA's Staff Committee, following a request to that effect by the Assembly of Agency Staff Committees (AASC).
7. The meeting with EMSA's management took place on 22 November 2011. The Ombudsman was accompanied by M. João 'Sant'Anna, Director of the Legal Department. EMSA was represented by Mr Leendert Bal, Head of Department and Acting Executive Director, Mr Tom van Hees, Internal Auditor, and Ms Manuela Tomassini, Head of Department. The meeting started with a short presentation made by Mr Bal. He provided the Ombudsman with general information about the agency, its mission and organization.
8. After that presentation, the Ombudsman briefly clarified that his visits are formally carried out on the basis of his competence to conduct own-initiative inquiries. An own-initiative inquiry implies, among others, that the usual procedural guarantees concerning such inquiries apply. These include the agency's right to request the European Ombudsman to treat information and documents on a confidential basis - see Articles 5.1, 5.2 and 14.2 of the Ombudsman's Implementing Provisions: www.ombudsman.europa.eu/resources/provisions.faces
9. Following this clarification, the Ombudsman was presented with detailed answers to the questions raised in the letter announcing the visit. The presentation and ensuing discussion centred around the following topics:
10. One of the Ombudsman's fundamental tasks is to ensure that the EU administration is open, service-minded and efficient in handling relations with citizens. The relevant basic principles are laid down in the European Code of Good Administrative Behaviour (ECGAB). The matter remains significant in the daily work of the European Ombudsman's Office, suggesting that the EU administration continues to face some challenges in this area. When appropriate, the European Ombudsman tries to find a rapid solution to complaints concerning grievances about a citizen's initial contacts with the administration. Usually this course of action takes the form of having his services contact the relevant person by telephone.
11. Although all EU agencies agreed to adopt the ECGAB at a meeting of the heads of the agencies held in Lisbon in October 2008, the Ombudsman wanted to find out exactly how EMSA has implemented this decision, and how it goes about ensuring that its staff complies with the principles laid down in the above-mentioned Code. The Ombudsman also noted that no references to this matter could be found on EMSA's website and asked to be informed about it.
12. EMSA drew the Ombudsman's attention to the Agency's new website, where virtually all relevant documents concerning the Agency's activities are available. The web-statistics from July to September 2011 showed a total of almost 200.000 visits to the site and almost 700.000 pages consulted.
13. Moreover EMSA explained that its activities can be followed through the following social networks:
14. EMSA further explained that its stakeholders, that is, members of the Management Board, experts, etc., have access to an intranet website.
The Ombudsman's findings in relation to the question of contacts with the general public were indeed positive. The website is user friendly and contains a huge amount of high quality information. The Agency also appears to be at the forefront of social media use in communicating its activities to the public. The Ombudsman commends the Agency and has no specific suggestions to make to it in this respect.
15. The European Ombudsman also places a premium on promoting transparency and on increasing accountability in the EU administration. This requirement is, among others, reflected in EU legislation on public access to documents, which expressly mentions the Ombudsman as a review body. It is also reflected in the Ombudsman's extensive powers of investigation, which enable him thoroughly to clarify the facts and issues raised in his inquiries.
16. Accordingly, the Ombudsman wanted to know more about the following issues which he had raised in the form of questions in his initial communication to the Agency:
a. How does EMSA deal in practice with requests for public access to documents? What are EMSA's guidelines and/or practical arrangements for handling such requests? Please provide examples, such as the main correspondence in the Agency's handling of the last three requests for public access to documents dealt with under Regulation 1049/2001. (The substance of EMSA's decision in these examples will not be examined, as this is not the purpose of this visit.)
b. EMSA handles a vast amount of information and data. Regulation 1049/2001 strictly speaking only applies to 'documents'. What is EMSA's approach to requests for access to information as opposed to, or compared with, documents in the sense of Regulation 1049/2001?
c. Does EMSA produce an annual report (internal or external) on its handling of public access to documents? and
d. Does EMSA operate, or intend to operate, a public register in the sense of Article 11 of Regulation 1049/2001?
17. EMSA explained that Article 4 of Regulation 1406/2002 establishing the European Maritime Safety Agency states that, when handling applications for access to documents held by it, the Agency shall apply the principles of Regulation 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents.
18. The same Article also states that the Agency shall ensure in particular that the public and any interested party are rapidly given objective, reliable and easily understandable information with regard to its work. And finally that the information collected shall be subject to Regulation 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.
19. EMSA also explained that requests for access to documents are dealt with by the communication officer under the Director's responsibility. It reassured the Ombudsman that the Agency is very open-minded and transparency oriented in relation to requests for access to documents, which however are not very numerous. The majority of requests for access to documents/information concern administrative procedures, such as tenders and selection procedures organized by the Agency. It went on to add that the Agency's open approach on these matters made it possible to answer these requests affirmatively.
20. The Ombudsman notes that the Agency appears indeed to be proactively disseminating information and takes note of its statements concerning its being transparency-oriented and service-minded towards citizens requesting information or access to documents. The Ombudsman also notes, however, that the Agency's website contains no information as to how a member of the public can request access to documents held by EMSA. Telephone and fax numbers, e-mail addresses, as well as the postal address of the Agency itself, are of course available on the website, but it is not made clear whether or not these can be used to request access to documents. This could be usefully clarified on the relevant page of the Agency's website (http://www.emsa.europa.eu/contacts/contact-lists.html ).
21. Moreover the Ombudsman notes that, with the entry into force of the Lisbon Treaty, the obligations listed in articles 11, 12 and 17 of Regulation 1049/2001 creates, for the agencies as well, an obligation to establish a public register of documents and to produce an annual report on the cases in which an agency refused to grant access to documents. In light of the Agency's commitment to openness as laid down in Regulation 1049/2001, the Ombudsman suggests that the Agency could usefully consider the possibility of including in its Annual Management Plan for 2013 the task of examining and implementing the above-mentioned two obligations.
22. With regard to the substance of selection and recruitment decisions, the Ombudsman pointed out that he takes an approach similar to that of the EU Courts. This means, among others, that he recognises the administration's very wide discretionary powers in selecting its staff.
23. With regard to the procedural aspects of selection and recruitment, the Ombudsman has very actively worked to increase the transparency of EU recruitment. This has, for instance, led to enhanced transparency regarding the names of members of selection boards, and to more detailed evaluation sheets providing candidates with better insight into how they have been assessed.
24. In light of these considerations, the Ombudsman asked, in his initial letter to the Agency, to be provided with clarification on the following issues concerning selection procedures organised by EMSA:
a. Are the names of selection board members known to candidates? To what extent does EMSA provide job candidates with access to the assessments of their applications?
b. To what extent does EMSA seek quicker and less formal means to resolve disputes about selection and recruitment decisions than the ones foreseen in Article 90 of the Staff Regulations?
c. Does EMSA systematically inform candidates that they may complain to the Ombudsman, as provided for in Article 19 of the European Code of Good Administrative Behaviour?
25. EMSA answered affirmatively to all three questions. It pointed out that the candidates receive a letter with the name of the chairperson, and that the Agency tries to reconcile the duty to give reasons and to inform candidates with the secrecy necessary for the selection boards to conduct their tasks in full independence. EMSA also explained that its staff is composed of 240 persons, the huge majority of whom are temporary agents and only four are officials. EMSA also has a small number (15) of seconded national experts.
26. Based on the fact that he has received virtually no complaints relating to recruitment procedures conducted by EMSA, the Ombudsman concludes that the level of transparency and the information the Agency provides to candidates about decisions taken by selection boards is sufficient. He would like to encourage EMSA to continue to pursue that policy in recruitment matters. He would, furthermore, like to ask EMSA specifically to confirm that all its recruitment notices inform candidates that they may complain to the Ombudsman in case they disagree with the procedures applied or with the decisions taken by selection boards.
27. At the review level, disputes in relation to tender decisions and contractual relationships are most commonly dealt with by the courts. However, a significant proportion of the Ombudsman's cases has over the years concerned these areas as well. In relation to tenders, the Ombudsman draws inspiration from the courts' approach, which is to recognise the administration's broad discretionary powers in assessing the substantive aspects of tender proposals, but carefully to check whether it gave valid and adequate reasons for its decisions and whether it adequately respected applicable procedures and information rights. In relation to contractual disputes, the Ombudsman does not as such assess whether a breach of contract has occurred. He does, however, thoroughly examine whether the administration provided good reasons for its position, and also looks into the fairness of administrative actions or omissions.
Questions:
(1) How does the EMSA handle disputes in relation to these areas?
(2) Are tenderers and contractors informed that they can complain to the Ombudsman?
28. EMSA explained that it conducts a very important number of tender procedures and that those involve considerable sums of money. It appears that, in spite of the technical challenges associated with technically complex matters in those tenders, the Agency has only had four cases brought against it before the EU courts. It also emphasised that access to information to unsuccessful tenderers constitutes part of its policy and that no particular problems have occurred so far in this area.
29. The Ombudsman recalls however that, during the visit, EMSA committed itself to indicate explicitly in its calls for tender that the European Ombudsman is a possible review mechanism in case of disputes. He would therefore welcome if EMSA, in responding to this report, could refer to any developments in this respect.
30. Conflicts of interest arise when persons who work for the public administration may be perceived to have an inappropriate personal interest in a matter with which they are dealing. Such conflicts need to be appropriately handled in order to ensure objective decision-making, and to enhance the public's trust in the administration. Recent events and cases show that the EU administration does not clearly enjoy the public's full confidence in relation to this issue.
31. In light of these considerations, the Ombudsman was interested to know what concrete measures EMSA applies in order to avoid conflicts of interest in relation to the following areas:
- Recruitment of staff, including senior staff and scientific staff
- Current and former staff members, notably regarding external activities during and after their service at the EMSA (see for instance articles 11, 11a, 12b, and 16 of the Staff Regulations).
32. EMSA mentioned that Article 13(4) of Regulation 1406/2002, establishing the Agency states that "when there is a matter of confidentiality or conflict of interest, the Administrative Board may decide to examine specific items of its agenda without the presence of the members nominated in their capacity as professionals from the sectors most concerned".
33. EMSA stated that it is particularly aware of the relevant provisions of the Staff Regulation and acknowledged that there was a need to train staff in this respect. It went on to add that it already conducts in-house training actions (compulsory “ethics and integrity” training for all staff) and encourages staff to seek advice whenever necessary. Declarations concerning the absence of conflicts of interest in recruitment and for staff members leaving the Agency are already implemented.
34. The Ombudsman considers that the Agency could better formalise its existing policy, and issue guidelines to its staff concerning the obligations laid down in the Staff Regulation both on entering and leaving the service and during their contracts. Moreover it should ensure that (a) the declarations of no conflict of interest signed by its experts and staff are sufficiently detailed and substantive and (b) they are carefully and thoroughly checked and concluded upon by the Agency itself, with an eye to avoiding the eventuality that such declarations are merely accepted on a pro forma basis. The Agency could forward to the Ombudsman copies of (a) updated declaration forms and updated written procedures for handling, and concluding upon, such declarations, as well as (b) the internal guidelines to staff concerning their professional obligations.
a. The Ombudsman considers that it would be useful to make available on EMSA's website information as to how a member of the public can request access to documents held by the Agency. Telephone and fax numbers, e-mail addresses, as well as the postal address of the Agency itself, are of course available on the website. It is not clear, however, whether or not these can be used to request access to documents. This could be usefully clarified on the relevant page of the Agency's website.
b. In light of the Agency's commitment to openness, and to the application of Regulation 1049/2001, the Ombudsman suggests that the Agency could usefully consider the possibility of including in its Annual Management Plan for 2013 the task of examining and implementing the obligations to (a) have a public register of documents and (b) publish an annual report on the cases in which it refused to grant access to documents.
c. The Ombudsman has received virtually no complaints relating to recruitment procedures conducted by EMSA. Accordingly, the Ombudsman concludes that the level of transparency towards candidates about decisions taken by selection boards is sufficient. He would like to encourage EMSA to continue to pursue that policy in recruitment matters. He would, furthermore, like to ask EMSA specifically to confirm that all its recruitment notices provide candidates with the information that they may complain to the Ombudsman in case they disagree with the procedures applied or with the decisions taken by selection boards.
d. EMSA committed itself to indicate explicitly in its calls for tenders that the European Ombudsman is a possible review mechanism in case of disputes between tenderers and awarding authorities. The Ombudsman would therefore welcome it, if, in responding to this report, EMSA could refer to, and report on, any recent developments in this respect.
e. The Ombudsman considers that the Agency could better formalise its existing policy as concerns conflicts of interest and issue guidelines to its staff concerning the obligations laid down in the Staff Regulation both on entering and leaving the service and during their contracts. Moreover, it could ensure that (a) the declarations of no conflict of interest signed by its experts and staff are sufficiently detailed and substantive and (b) they are carefully and thoroughly checked and concluded upon by the Agency itself, with an eye to avoiding the eventuality that such declarations are merely accepted on a pro forma basis. The Agency could forward to the Ombudsman copies of (a) updated declaration forms and updated written procedures for handling, and concluding upon, such declarations, as well as, more generally, (b) the internal guidelines to staff concerning their professional obligations.
I would be pleased if EMSA could report back to me on its follow-up of the above suggestions by 31 August 2012.
P. Nikiforos Diamandouros
Done in Strasbourg on 10.05.2012
[1] OJ L 208, 5.8.2002, p.1.
[2] OJ L 245, 29.9.2003, p. 10.
[3] OJ L 129, 29.4.2004, p. 1.
[4] OJ L394, 31.12.2006, p.1.
