Introduction

I am very grateful to my distinguished colleague, Prof. Andrzej Zoll, the Polish Commissioner for Civil Rights Protection, for giving me the oportunity to be heard on the subject of today’s conference.

I also wish to salute and applaud the establishment of Oświęcim Human Rights Institute, as a centre for sustained debate and deliberation on a topic which constitutes the foundation of our contemporary European civilisation.

I further wish to recognise and hightlight the catalytic role of the Polish Ombdusman in this initiative and more particularly in today's Polish political culture - a role which underscores the magnitude of the legitimacy of both the institution and incumbent ombudsman in today's Poland and brings to mind an important academic article, written almost 20 years ago, by a distinguished Polish sociologist, Zygmunt Bauman, concerning the broader role and special weight of intellectuals in public life in the Eastern Europe and especially in Poland.

Within the European Union, the subject of fundamental, individual and human rights is, at present, certainly being approached quite differently from the way it was dealt with as recently as a few years ago.

The European Union, and its precursors the European Communities, including what was originally known as the “European Economic Community”, have always been based upon the rule of law.

Through the solemn proclamation in Nice, in December 2000, of its Charter of Fundamental Rights, and, subsequently, through the latter’s incorporation in its entirety in the Treaty establishing a Constitution for Europe, the European Union has signalled in the most formal way possible its commitment to respect for human and fundamental rights as the basis for Union law and for all its activities.

Poland -- whose concern for, and struggles in defence of, such values is well recorded in the annals of European history -- now constitutes, through its accession to the Union, an integral part of that European legal order and, indeed, is one of 25 equal partners in its further development.

It is not surprising, then, that today’s discussions on the theme of humanity as the foundation for human rights is taking place in a country with a political and civic culture deeply imbued with issues associated with these rights, in a country which has experienced the barbarity of Auschwitz-Birkenau but also the emergence of Solidarność, whose contribution, 25 years ago, to the further entrenchment of human rights as part of the European legal order was decisive, indeed.

In this context, I would like to quote the words of a national judge of one of the Member States, in a recent decision concerning the rights of patients: “The recognition and protection of human dignity is one of the core values – in truth the core value – of our society and, indeed, of all the societies which are part of the European family of nations. (….) The invocation of the dignity of the patient… is a solemn affirmation of the law’s and of society’s recognition of our humanity and of human dignity as something fundamental.”

Ladies and gentlemen, the growing powers of European Union bodies mean that their decisions affect, with increasing frequency, the sphere of the rights of the individual.

This is apparent both in the administrative activities of institutions, but also in the Union’s legislative acts.

The former President of the European Commission, Jacques Delors, has argued that roughly half the provisions of national law in the Member States are derived directly or indirectly from Community law, while, where economic law is concerned, the Community origin of national standards is by some estimates as high as 80%!

When we also recall that Community law is directly applicable in the Member States and has primacy over national law, it is obvious why a definition of fundamental rights and a definition of the mechanisms of their protection has become necessary in the legal order of the European Communities.

Given the time constraints, I shall, of necessity, confine my comments on the subject of the protection of human rights in the Communities to the following aspects:

I shall begin with a brief outline of how fundamental and human rights have been realised for European citizens, speaking about two periods of upholding these rights: before and after the adoption of the Charter of Fundamental Rights of the European Union.

I shall also refer to the European Code of Good Administrative Behaviour, which was drafted by the European Ombudsman and adopted by the European Parliament. The Code makes it clear for citizens what one of their fundamental rights, the right to good administration, should mean in practice.

Then, I will seek to explain how the protection of fundamental and human rights by the European Ombudsman should be regarded as an alternative and complement to that provided by the European Courts.

I will conclude by referring briefly to the function of human rights in European law.

I. Fundamental and human rights in the European Union
Before the Charter

When the European Economic Community was founded, the emphasis was on economic matters rather than individual rights. After all, the 1950 Council of Europe Convention on Human Rights and Fundamental Freedoms already dealt with human rights. Fundamental rights were not in the forefront of the minds of those drafting the early European Community Treaties, which, anyway provided for certain basic freedoms, such as the freedom to seek work and to travel for this purpose around the Communities.

It was even considered that, since fundamental rights are the domain of the national legal order and since all national constitutions tended to contain a solemn declaration on fundamental rights, there was no need to formulate and seek to integrate such rights in the legal order of the Communities.

Despite these early constraints, the European Court of Justice became a pioneer of fundamental rights by developing an extensive body of case-law — something that it was able to do thanks to Article 220 of the Treaty, which makes the Court responsible for ensuring that the law is observed in the interpretation and application of the Treaty.

The Court decided that fundamental rights are general principles of the European legal order. These principles are grounded, it said, in the constitutional traditions common to the Member States, and in the international treaties to which the Member States belong. The most important of these is the 1950 European Convention on Human Rights.

Its extensive case-law sets standards of protection for citizens. It provides for example for rights to a fair trial, effective judicial remedies, privacy, free association, property, professional secrecy and freedom of expression.

To these rights, one might also add principles derived from the rule of law, which the Court of Justice has also established as general principles of Community law, including proportionality, legal certainty, the protection of legitimate expectations, non-retroactivity, and openness and accessibility of the law.

The Court has ruled that all EU institutions must respect fundamental rights, as must the national authorities when they are implementing EU law.

The Treaties have been amended and supplemented on several occasions since the original Treaty of Rome was signed in 1957. Each update has seen an enrichment of EU citizens' specific rights.

The EC Treaty now covers the four internal market freedoms and provides for measures to combat discrimination based on nationality, gender, race, ethnic origin, religion, disability, age or sexual orientation.

Article 6 of the Treaty on the EU is the key provision as far as fundamental rights are concerned and makes explicit that the European Union is founded on the principles of liberty, democracy, human rights and fundamental freedoms and the rule of law.

The EC Treaty also contains the special rights of European citizens (freedom of movement and residence, rights of election to the European Parliament and local authorities, the right to claim diplomatic and consular immunity, the right of petition, and the right to address the European Ombudsman).

The Charter

Finally, the Charter of Fundamental Rights of the European Union which was proclaimed in December 2000 at a European Union Summit in Nice, brings together into a single text the civil, political, economic and social rights enjoyed by the citizens and residents of the EU. The Charter was incorporated as Part Two of the Treaty establishing a Constitution for Europe.

The Charter draws mainly on the 1950 European Convention on Human Rights, the case-law of the European Court of Justice, the Council of Europe’s Social Charter and the Community Charter of Fundamental Social Rights of Workers.

The provisions of the Charter of Fundamental Rights are addressed to the institutions and bodies of the Union and to the Member States when they are implementing Union law.

I will not quote, before such a distinguished audience, all the rights and freedoms contained in the Charter. It could be useful, however, to mention that some of its provisions go beyond merely enshrining traditional human rights in its text, and specifically address modern issues, such as bio-ethics and the protection of personal data, or contain novel elements (by comparison with the European Convention on Human Rights), such as the right to health care, the rights of the elderly, and the legal, social and economic protection of the family.

With regard to the section of the Charter entitled ‘Citizens’ Rights’, it should be noted that, despite its title and the phrase ‘every citizen’, the addressees of the rights are essentially persons residing in an EU Member State, even if they do not possess citizenship. This applies to the right to good administration, recognised by Article 41 of the Charter, which includes the right to have one’s "affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union".

This principle includes the right of every person to be heard, before any individual measure which would adversely affect him or her is taken; to have access to his or her file, while respecting legitimate interests of confidentiality and of professional and business secrecy; the obligation of the administration to give reasons for its decisions; to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States; to write to the institutions of the Union in one of the Treaty languages and to be provided with an answer in the same language.

By the same token, the rights contained in Articles 42-44 of the Charter, i.e. the rights of access to documents, to petition the European Parliament and to address the Ombudsman, apply not only to citizens, but also to individuals residing, and legal entities having a registered office, in a Member State. Finally, the right of freedom of movement may be guaranteed to citizens of third countries legally staying in EU Member States.

The Charter also expands on the provisions of the European Convention on Human Rights concerning the right to an effective remedy. Article 47 of the Charter insists that the right to a judicial remedy is fundamental, which means that, whatever other kinds of remedy may also exist, the right to go to a court must always be available.

As regards the judicial protection of human rights, the European Ombudsman has consistently supported. both the Union's accession to the European Convention on Human Rights and a legally binding Charter of Fundamental Rights, arguing that the two should be seen as complementary not as alternatives.

European Code of Good Administrative Behaviour

The obligations of institutions and agencies, arising out of the fundamental principles of law, have been spelled out in the European Code of Good Administrative Behaviour, drawn up by the European Ombudsman and adopted on 6 September 2001 by the European Parliament in the form of a resolution.

The Code also specifies the duty of the administration to treat citizens fairly and in a service-minded way.

The Code sets out the criteria of good administration, covering such concepts as impartiality, lawfulness, reasonableness, proportionality, and objectivity, all of which can be considered simply as normal standards of behaviour for officials and institutions.

The application of many of these criteria, such as fairness, objectivity or proportionality includes a moral dimension.

In my investigations and decisions, I very often refer to the Code and make extensive use of the principles embodied in it. Setting these criteria out explicitly in a Code helps both citizens and the administration focus on their mutual expectations in a way that promotes trust and more effective communication. Thanks to the publication of the Code, the findings of the Ombudsman also became more easily understandable by citizens.

Although the Code, like the Charter of Fundamental Rights, is not, or not yet, a legally binding document, the institutions acknowledge the principles it contains and accept the Ombudsman's findings based on it, even if they have adopted codes of their own that differ from it to a greater or lesser extent.

What are the Code's future prospects?

During the Convention that drafted the Charter and again during the Convention that drafted the Constitution for Europe, the Ombudsman emphasised that good administration is essential for citizens to be able to enjoy their rights as an everyday reality. When I spoke to the College of Commissioners on 25 May this year, I emphasised the importance of consistency and urged the Commission to take an initiative to put an end to the present confusing situation, in which different institutions and bodies apply a variety of different codes.

The fact that the Commission's own code of good administrative behaviour closely parallels the European Code of Good Administrative Behaviour should make such a task easier to tackle.

I was encouraged by the positive response from Commission President Barroso who agreed with my aims and reported that he has already contacted the President of the European Parliament, with a view to encouraging all the institutions to adopt a common text. He also undertook to pursue the matter as a priority.

II. Remedies: the Ombudsman as an alternative and a complement to the European courts
Judicial remedies

Before focusing on those activities of the European Ombudsman that are meant to protect the fundamental rights and human rights of European citizens -- activities which I regard as alternative and complementary to the work of the courts -- I should like to say a few words about the protection of individuals’ rights by the European courts.

The principle of ensuring effective legal protection of the rights of the individual arises from Articles 6 and 13 of the European Convention on Human Rights, and, as the European Court of Justice has decided, is also a general principle of Community law.

The Amsterdam Treaty and the constitutional treaty both unambiguously affirm the jurisdiction of the Court of Justice in the sphere of fundamental rights and its competence as regards the Community institutions in this respect.

This means that individuals may appeal for the protection of their rights to the European courts in four basic types of proceedings: those relating to a declaration of invalidity of a Community act; a declaration of an unlawful act or omission by a Community body; actions for compensation for damages; and staff cases. However, according to Article 230 of the EC Treaty an individual may institute these proceedings before the European Court only if the decision is addressed to that individual, or affects him or her directly and individually.

The requirement of direct and individual concern is interpreted strictly. The Court of Justice has taken the view that it is for the Member States, not the Court to reform fundamentally the system currently in force.

Ombudsman

Coming now to the European Ombudsman, I would first mention that the Maastricht Treaty established the European Ombudsman in 1993 to enhance relations between citizens and the Union level of governance.

The European Ombudsman is competent to deal with maladministration in the activities of Community institutions and bodies, except the European courts acting in their judicial role -- which means that, for example, I can investigate complaints about recruitment to the Courts or contracts that they award, but not complaints about their handling of cases.

The institutions are, of course, listed in the Treaty but the category of “bodies” is open-ended and has grown significantly in recent years, as more and more new bodies, offices and agencies have been established.

The review criterion laid down in the Treaty for the Ombudsman’s inquiries is “maladministration".

Since the first Annual Report in 1995, the European Ombudsman has consistently taken the view that three kinds of failure may give rise to a finding of maladministration:

• failure to respect a legal rule or principle,
• failure to respect the principles of good administration, or
• failure to respect human or fundamental rights.

These three categories overlap. As already mentioned, the Court of Justice has established that human rights, as guaranteed by the European Convention on Human Rights and the constitutional traditions common to the Member States, also constitute general principles of Community law.

On the other hand, even though the Charter of Fundamental Rights is not yet legally binding, I take the view that it would not be good administration for the Union institutions that solemnly proclaimed the Charter in December 2000 to fail to respect its provisions.

There is also some overlap between legal rules and principles on the one hand and the principles of good administration on the other. For example, the Court of Justice and the Court of First Instance of the European Communities sometimes include reference in their decisions (which are, of course, legally binding) to a concept of “sound” or “good” administration.

The Ombudsman as an alternative to the Courts

The EC Treaty prevents me from investigating “where the alleged facts are or have been the subject of legal proceedings”. The decisive words in this provision are not “could or might have been” but “are or have been”. This means that, in many cases, citizens have a choice of remedy: they may go either to the Court, or to the Ombudsman.

In making their choice, citizens will no doubt take into account that the Ombudsman provides them with easy access to the protection of their fundamental rights. There is no cost in going to the Ombudsman, no need to have a lawyer, and we are normally quicker than a Court. Despite the constraints imposed by the need to have decisions translated into the language in which the complaint is submitted, we aim to complete inquiries within a year and we achieve that target in about 95% of cases.

There are also two other factors that help to make the European Ombudsman a genuine alternative to the Court.

First, the criteria for review that I apply overlap with, but are not identical to, those of the Court. As the Court of First Instance has recently recognised, maladministration is not necessarily illegality. Breaking the law is a form of maladministration, but the principles of good administration demand more of institutions than merely not breaking the law.

In this context, I would like to underline the importance of the application of open-ended principles of good administration (as defined in the European Code of Good Administrative Behaviour) in my decisions. These principles allow the Ombudsman to assess issues in a more flexible and more forward-looking fashion than courts of law are normally able to do.

As my predecessor, the first European Ombudsman Jacob Söderman stated in his 1997 Annual Report "... the open ended nature of the term (maladministration) is one of the things that distinguishes the role of the Ombudsman from that of a judge". In fact, the application of such open-ended principles of good administration may even have an influence on the development and application of legal rules and principles.

Second, our way of working is much more flexible than that of the Courts. As regards admissibility for example, there is no requirement that the complainant be personally affected by the maladministration or that there be an official act to be challenged. This is why I can investigate certain kinds of complaint (such as those against the Commission in its role of enforcing Community law against Member States), despite the fact that it would not be possible for a complainant to go to the Court.

The Ombudsman may also extend the protection he can offer to persons who are neither citizens nor residents. This he can do by having recourse to his power to inquire on his own initiative, if he thinks that a complaint by a non-citizen or non-resident raises an issue of maladministration by a Community institution or body that should be investigated.

In addition, whenever I find maladministration, I seek a friendly solution if possible. The search for a friendly solution creates room for manoeuvre that I can use to try to ensure a win-win outcome, satisfying both the citizen and the institution concerned.

As is typical of virtually all ombudsmen, my decisions are not legally binding. The citizen who wants a legally binding decision concerning his or her rights and obligations can opt to go to a court of competent jurisdiction. However, rather than regarding non-bindingness as a weakness, I consider it a strength, because it enables procedures and criteria of admissibility to be more flexible in the ways that I have already explained. In this sense, non-bindingness enables the Ombudsman to be a genuine alternative to the Court.

The availability of this alternative enhances choice for citizens. The citizen can decide what is the appropriate form of dispute resolution in his or her circumstances.

Let me add that I am persuaded that one important measure of the quality of democracy is the extent to which it offers choice to citizens. By widening choice for citizens, the role of the Ombudsman thus enhances the quality of democracy as well as broadening access to justice.

The Ombudsman as a complement to the Courts

A further aspect of legal protection offered by the Ombudsman derives from his ability to take appropriate measures designed to inform and to educate both citizens and the public administration regarding the rights available to citizens.

When acting in such a way, the Ombudsman complements the Courts, by working proactively to raise the quality of the public administration.

The role of the Ombudsman is not simply to serve as a mechanism of external control with respect to the public administration and thus to criticise the institutions when they fail to perform in accordance with the rules binding on them. He can also serve as a rich resource of information, capable of indicating to the institutions and to their top management how they could improve their behaviour in providing citizens with higher quality service.

As I have mentioned earlier, the European Ombudsman drafted the European Code of Good Administrative Behaviour. The idea was that it should be adopted by all the Union institutions and bodies as a guide for both citizens and officials. The Code is currently being published in a new edition and will soon be available in 24 languages (the 20 official EU languages and the four languages of the candidate countries for EU membership). I expect the Polish version to be available by the end of this month. A limited number of computer generated sample copies produced by my office for purposes of this meeting are available here today and I have had the pleasure of handing one to Professor Zoll.

Since assuming my duties in April 2003, I have conducted a wide-ranging information campaign designed to better familiarise citizens in the Member States with their rights as EU citizens and of how to make use of these rights. To that end, I have already visited all the 25 EU Member States, including the 10 new Member States when they were candidate countries. Such visits are normally an occasion for me to meet with citizens and potential complainants to explain the role of the ombudsmen, to exchange views with public officials to underline the importance of non-judicial remedies and to discuss with my ombudsmen colleagues to determine how best to defend and promote citizens' rights.

One of these visits was certainly unforgettable: one year ago, on 30 April 2004, I had the honour to be a guest of Prof. Zoll and to take part in the celebrations marking Poland's entry in the EU and the raising of the European flag in Piłsudski Square in Warsaw in commemoration of this momentous event.

Finally, I seek systematically to develop cooperation with national ombudsmen in the Member States. If citizens are to be protected against maladministration, co-operation, and indeed active collaboration, among national administrations needs to be matched by co-operation and collaboration among ombudsmen.

In future, I would like to explore with national colleagues the feasibility and usefulness of extending the kind of informal co-operation that already exists into joint inquiries in some situations.

To give an example: the new EU Borders Agency, which will shortly start its operations in Warsaw, will work in co-operation with national administrations. If one imagines possible scenarios that could give rise to complaints relating to this EU body, it may well be that only an inquiry could help clarify who is responsible for what has occurred: the Agency, the national authorities, or both.

In such a case, it would surely be in the interests of the complainant for the ombudsmen involved to get on and deal with the matter, possibly through a joint inquiry, rather than waste time debating issues of competence with the Agency and the national authorities concerned.

III. Conclusion

Ladies and Gentlemen, European integration proceeds at a varying pace, but every step taken has involved greater attention to the worth and rights of the individual.

Fundamental rights and human rights play a protective role in Community law, as they protect individuals from abuses and arbitrariness on the part of Community institutions, or of national authorities when they are implementing Community law.

Correspondingly, the acknowledgement of these rights and the existence of effective means to secure and defend them helps legitimate the activities of the institutions on which they are binding.

Protection of human rights at the Community level is also an integrating factor, since it helps to reinforce the belief in the existence of a European community and European legal order and in the value of common European standards. As the authors of the constitutional treaty stress in the Preamble, we draw inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law -- an inheritance and values which it behoves us to recall and to celebrate especially on occasions such as the present meant to serve as painful and tragic reminder of the catastrophes that can befall human society when it chooses to ignore them.

As an institution entrusted, among others, with the defence and promotion of this inheritance and these values, the EU rejoices in the creation of an institution such as the Oświęcim Human Rights Institute devoted to the pursuit of the same cause and ideal.

Thank you.