European Ombudsman
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Strasbourg, 13-01-2006Mr José Manuel BarrosoPresidentEuropean Commission1049 BruxellesBELGIQUE
Mr President,
Article 195 of the Treaty establishing the European Community empowers the European Ombudsman to conduct inquiries on his own initiative in relation to possible instances of maladministration in the activities of Community institutions and bodies. By virtue of this provision, I hereby open an inquiry into the extent to which the Commission has acted to promote the availability of alternative methods of dispute resolution (ADR), and in particular mediation(1), in relation to contracts financed by the Commission.
1. The reasons for the inquiry1.1 The Commission's promotion of the use of ADR in the Member States
In 2002, the Commission presented a Green Paper on alternative dispute resolution in civil and commercial law(2), pointing out that "ADR is a political priority, repeatedly declared by the European Union institutions, whose task is to promote these alternative techniques". In its Green Paper, which aimed at gathering views to be used as input for the general lines of the Commission's policy to be conducted in its role as promoter of legislative and operational initiatives, the Commission pointed out that the European Union is endeavouring to facilitate access to justice and that ADR is an integral part of the policies aimed at improving such access.
In 2004, the Commission made a Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters(3). The objective of the proposal was to ensure better access to justice, namely that individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal and administrative systems in the Member States. More specifically, the proposed Directive aimed at increasing the use of mediation in the EU.
In its proposal for a Directive, the Commission pointed out that the concept of access to justice should include promoting access to adequate dispute resolution processes for individuals and businesses, and not just access to the judicial system. The Commission referred to mediation as a quicker, simpler and more cost-effective way to solve disputes, which makes it possible to take into account a wider range of interests of the parties, provides a greater chance of reaching an agreement which will be voluntarily respected, and preserves an amicable and sustainable relationship between them. The Commission stated that it believes that mediation holds an untapped potential as a dispute resolution method and as a means of providing access to justice for individuals and business.
Furthermore, already in 2003 the Commission launched self-regulatory initiatives in order to develop a European plan for best practice in mediation. Further to the Commission's initiatives, a "European Code of Conduct for Mediators"(4) was developed by a group of stakeholders with the assistance of the services of the Commission and the Code was launched at a conference on self-regulation of mediation held in Brussels in July 2004. Organisations that have decided to commit themselves to asking mediators acting under their auspices to respect the code may inform the Commission services about this decision. Names and contact details of the organisations in question will be added to a list that is available on the Commission's website(5) (for information purposes only).
1.2 Complaints to the Ombudsman concerning contractual disputes
The Ombudsman receives a significant number of complaints every year which are directed against the Commission and concern contractual disputes either between the Commission and its contractors, or between the Commission's contractors and their sub-contractors. In most such cases, the complainants are individuals, SMEs or other small organisations that opt to resort to the Ombudsman instead of bringing the matter before a court, which would prove too costly. In these cases, the Ombudsman, using the powers that his Statute puts at his disposal, carefully examines whether the contractual dispute brought before him entails an instance of maladministration by the Commission, and, if that is the case, tries to suggest suitable remedies. However, the Ombudsman is rarely able to achieve a satisfactory solution in cases where the problem concerns relations between a contractor and a sub-contractor, since he has no jurisdiction to deal with a complaint made by a sub-contractor directly against a contractor(6) and the Commission's response to complaints directed against itself by a sub-contractor is often to point out, correctly, that it has no contractual link to the complainant and to deny responsibility in the matter.
Furthermore, although the possibility to bring court proceedings in respect of breach of contract, or to complain to the Ombudsman against maladministration, constitute essential guarantees for the rights of contractors, neither the courts nor the Ombudsman should normally be the first instance of resort when problems arise in the Commission's contractual relationships. As pointed out by the Commission itself (see point 1.1 above), ADR allows a wider range of interests of the parties to be taken into account than do the procedures available through the judicial system. The Ombudsman takes the view that ADR, and mediation in particular, may also allow for a broader range of constructive approaches to problem-solving in a contractual relationship than are possible within the framework of an inquiry into possible maladministration.
1.3 The Ombudsman's reflections
The Ombudsman welcomes the Commission's actions referred to in part 1.1 above, the aim of which is to enhance access to justice for individuals and businesses, particularly by promoting the use of mediation in the EU. The Ombudsman has consistently expressed the view that access to non-judicial remedies constitutes an important feature of a democratic society. The Ombudsman considers that access to mediation could enhance the efficiency of such remedies.
It is clear that the Commission considers ADR, and in particular mediation, to be something worth promoting and making greater use of. The Ombudsman further notes that the kind of disputes that the Commission has in mind as suitable for resolution through ADR and mediation can also occur in the Commission's own sphere of actions. This is shown not least by the number of complaints received by the Ombudsman, including complaints from SMEs, that concern contractual disputes involving, directly or indirectly, the Commission. The Ombudsman therefore wonders whether ADR, and in particular mediation, could also be used to good effect in relation to contracts financed by the Commission, thereby ensuring greater access to justice for individuals and businesses within the EU in that important area as well.
2. The inquiry
The Ombudsman would therefore very much appreciate it if the Commission could inform him 1) whether it has already considered the potential usefulness of ADR, and in particular mediation, in its own sphere of activity, 2) what the results of any such considerations have been, 3) whether it proposes to become active in that regard, both in its own contractual relations and in relations between its contractors and sub-contractors, and 4) whether it sees any potential problems or drawbacks in this regard.
I kindly request the Commission to send me its opinion by 30 April 2006.
Please note that, in order to facilitate public knowledge of the inquiry and of its eventual outcome, I may decide to publish, on the Ombudsman's website, certain documents pertaining to the inquiry, including this letter and the Commission's reply.
Yours sincerely,
P. Nikiforos DIAMANDOUROS
(1) The Ombudsman considers the following definition of mediation (based on Philippa Rowe, Resolving your Disputes by Mediation: The Academy of Experts: 2004, p. 72) to be useful for purposes of the present inquiry: "a non-binding dispute resolution process in which an independent third party assists the parties to settle their differences but does not advise them of his or her own opinion as to the issues and merits of the dispute".
(2) Green Paper on alternative dispute resolution in civil law and commercial law, COM(2002) 196 final.
(3) Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, COM(2004) 718 final.
(4) http://www.europa.eu/comm/justice_home/ejn/adr/adr_ec_code_conduct_en.pdf
(5) http://www.europa.eu/comm/justice_home/ejn/adr/adr_ec_list_org_en.pdf
(6) Article 2.1 of the Statute of the European Ombudsman states that "[w]ithin the framework of the Treaties (...) the Ombudsman shall help to uncover maladministration in the activities of the Community institutions and bodies (...) No action by any other authority or person may be the subject of a complaint to the Ombudsman."
