Mr President!
Members of the Convention!
I would first like to thank you for inviting me to speak at the very beginning of your work of drafting a Charter of Fundamental Rights for the European Union.
The office of European Ombudsman was established by the Treaty of Maastricht with the aim of furthering the citizenship of the Union and enhancing the relations between the Union and its citizens. The Ombudsman's specific task is to make inquiries about possible instances of maladministration in the activities of Community institutions and bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. It is important to underline that the mandate of the European Ombudsman concerns only the Community institutions and bodies. Community law and policies are implemented mostly by national, regional or municipal administrations of the Member States, but the European Ombudsman cannot supervise their activities.
The definition of maladministration which was proposed by the Ombudsman and accepted is that:

"Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it."

This, of course, includes failure to respect human rights.

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1 What is the problem?

On the basis of my experiences as European Ombudsman since September 1995, I will try to look at the idea of the Charter from the perspective of the citizen.
The Charter project began in response to a specific problem: the failure of the proposal that the European Community should accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Commission had proposed that the Community should sign the Convention. The Council asked for an Opinion of the Court of Justice on the proposal. In March 1996, the Court decided that the Community had no competence to accede to the Convention on the basis of the existing EC Treaty. (1) In 1997, the Treaty of Amsterdam committed the Union to respect fundamental rights, as guaranteed by the European Convention and as they result from the constitutional traditions common to the Member States, as general principles of Community law.(2) However, the Member States did not take the opportunity of the Amsterdam Treaty to provide the Community with competence to accede to the Convention, or to any other international human rights convention.
There are two reasons for citizens to be dissatisfied with the present situation. First, The Treaty refers to fundamental rights, but does not say what they are. To discover what fundamental rights the institutions and bodies of the European Union should respect, the citizen must become an expert in comparative constitutional law as well as in Community law.
The second problem is the gap in protection of rights at the level of the Union. The Member States have all signed the European Convention and there are many other international instruments for the protection of human rights which bind all, or a majority, of the Member States. From the citizen's perspective it is not obvious why these provisions should apply to the activities of national authorities in their fields of competence, but not to the activities of the Union's institutions and bodies within the Union's fields of competence.

2 A pragmatic proposal

I have already proposed, on previous occasions (3), a pragmatic way forward from the present situation.
The proposal is to insert a provision in the EC Treaty to require that the Union's institutions and bodies respect the existing international human rights instruments that all, or a majority, of its Member States have ratified. This would include not only the ECHR, but also other Council of Europe Conventions such as the European Social Charter, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the Framework Convention for the Protection of National Minorities. It would also include United Nations instruments such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, as well as a number of ILO conventions. A complete list of the relevant instruments could be annexed to the Treaty.
In my view, the main advantage of this proposal is that it could be accepted and implemented quite rapidly. On the other hand, it must be acknowledged that the result would not be perfect, since the citizen would still be obliged to read a number of different texts in order to know his or her fundamental rights. Furthermore, the lack of international supervision would remain.
I therefore very much welcome the initiative to create a Charter of Fundamental Rights. In my view, the starting point for drafting the Charter should be respect for the existing international human rights instruments which are already binding on all, or a majority, of the Union's Member States, as well as their constitutional principles.
In order to be understood by the citizens and to make it possible to apply, the new Charter should be drafted to include clear provisions, binding on the Union's institutions and bodies, both internally and in their relations with third countries and international organisations. If this could be achieved, it would already be an important step forward for the citizen.
If there is sufficient political will within the Union, this could of course become the foundation for a more ambitious approach in the future.
The most encouraging part of your work in drafting the new Charter is the possibility to take into account modern developments in human rights standards and in the relationship between the citizen and the public administration.

3 A fundamental right to an open, accountable and service-minded administration

Foremost amongst these developments is the idea that the citizen has a right that his or her affairs be dealt with properly, fairly and promptly by an open, accountable and service-minded public administration.
Experience shows that an open administration, which is practised in many Member States, allows the citizen to obtain the information needed to call the administration to account for its actions and omissions, and so promotes a high level of public debate and enhances the possibilities of rational consent and participation. Furthermore openness seems to work against corruption, while a closed and confidential handling of public affairs provides opportunities for fraud and other illegal activities.
Alongside openness and accountability, should be placed service-mindedness. Service-mindedness implies that the administration exists to serve citizens, not vice versa. In national systems of administration, this principle is expressed in different ways such as citizen-friendliness and the concept of public service.
In the Charter itself, the citizen's right to good administration should be stated at the level of principle. To put the principle into practice, it would be necessary to enact a Regulation on good administrative behaviour and another on access to information and to documents.
To include this right in the Charter could have a broad impact on all existing and future Member States, helping to make the 21st century the "century of good administration".

4 Rights are worth nothing without effective remedies

Mr Chairman!
In the final section of my remarks I would like to emphasise that rights are worth nothing without effective remedies. I stress this point because I have been disturbed by what has happened to the promises which were made to citizens of the Union in the Treaty of Amsterdam. According to the Amsterdam Treaty, the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. Furthermore, decisions should be taken "as openly as possible". (4)
Despite these fine words, some Community legislation continues to be decided behind closed doors by the Council of Ministers. I have heard it argued that these meetings should not be open to the public because, on the one hand, the debates lack interest and, on the other hand, because the real negotiations would move to corridors and private meetings. If these arguments were valid, they would equally apply at national level and the national Parliaments should also legislate in closed session. In my view, the arguments are not valid. Citizens in a democracy should be entitled to listen to the debates which accompany the enactment of laws.
The Treaty also promised citizens a constitutional right of access to documents of the European Parliament, Council and Commission. According to Article 255 EC, "general principles and limits on grounds of public or private interest governing this right of access to documents" shall be determined before 1 May 2001. Last week, the Commission published its proposal for a Regulation. I am sorry to say that this document seems to consist mainly of a long and obscure list of possible reasons to deny access to documents. This cannot be what was intended when the Treaty of Amsterdam was drafted.
However, it must be remembered that the activity of the Court of Justice and Court of First Instance has consistently promoted respect for Community law including fundamental rights. Insofar as citizens enjoy, at present, any rights of access to documents, this is in large part due to the Courts.(5)
I do hope that the Charter will be drafted and adopted in a form which enables the citizen to apply to the Community Courts if his or her fundamental rights are infringed by the activities of a Union institution or body. Within his mandate, the European Ombudsman is also ready to supervise respect for fundamental rights, for the benefit of the citizens, as an extra-judicial remedy.
As the experience of the Member States shows, the protection of fundamental rights can be further enhanced and strengthened by the possibility of international supervision. The most developed and effective system of supervision is that of the European Convention on Human Rights. All the Union's Member States have accepted international supervision through the Convention system, which they played an active part in creating and developing over a long period. It therefore seems right that the institutions and bodies of the Union should also accept this supervision, through accession to the Convention.
Mr President!
Members of the Convention!
I wish you every success in your important task of drafting the Charter of Fundamental Rights for the European Union.
Thank you for your attention.

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(1) Opinion 2/94 [1996] ECR I-1759. The Court held that Article 308 (ex Article 235) of the EC Treaty (ECT), which gives the Council the power to take appropriate measures if action of the Community is necessary to attain one of the objectives of the Community, was not a sufficient legal basis, given the "fundamental institutional implications" for the Community and the Member States of accession to the European Convention.

(2) Article 6 of the Treaty on European Union.

(3) In speeches at the conference "A European Union Human Rights Agenda for the year 2000" Vienna, 9 October 1998 and to the European Forum, "Eine Europäische Charta der Grundrechte - Beitrag zur gemeinsamen Identität", Köln, 27 April 1999.

(4) Treaty on European Union, Articles 1 and 6.

(5) I developed this point in my speech on the 10th Anniversary of the Court of First Instance, 19 October 1999.