1 Introduction

It is a great pleasure to be here in Florence and to have the opportunity to discuss ombudsmanship with so many friends and colleagues. I would like to congratulate Mr Nencini and Mr Morales for taking the initiative to organise this conference on a topic that is important for Italy, important for Europe and important for Italy in Europe.

I shall begin with some reflections on the rapid spread of the ombudsman institution, especially in Europe.

I shall then speak about co-operation among ombudsmen in the European Union through the European Network of Ombudsmen.

Finally, I shall outline what seem to me the key issues to address when establishing a new ombudsman office.

2 The Ombudsman institution in Europe

The spread of the ombudsman institution is global, but the pace of development has been most striking in our continent, Europe.

When the Treaty of Maastricht created the office of European Ombudsman in the early 1990s, there were national ombudsmen in only a bare majority of the Member States of the European Union: 7 out of 12.

Three of the five Member States that were then without a national ombudsman; that is, Belgium, Greece and Luxembourg, have subsequently established an ombudsman office.

All the countries that joined the Union in 1995 and 2004 had national ombudsman offices at the date of their accession. Indeed, the 1995 enlargement included the world’s oldest and second oldest ombudsman institutions: those of Sweden and Finland.

The result is that, today, 23 of the 25 Member States have a national ombudsman. So do Romania and Bulgaria, which will join the Union next year, and two of the three candidate countries: Croatia and Macedonia (FYROM).

In Turkey, as well, the efforts to establish an ombudsman are continuing, and there appears to be light at the end of the tunnel.

Why has the ombudsman institution spread so widely and so rapidly in Europe? I believe the explanation is to be found in two historical developments.

Two historical developments

The first is the major growth of public administration during the twentieth century, especially after the Second World War. As contacts between public administration and citizens became more frequent and more intensive, so did the potential for disputes.

The citizen’s right to a judicial remedy against the public administration is, of course, fundamental to the rule of law.

However, there is increasing recognition, not least by judges, that court proceedings are not always the most appropriate way to resolve disputes between citizens and the public administration.

In some cases, the non-judicial remedy of the ombudsman can provide a cheaper and quicker alternative, thus helping to avoid an overload of the court system and consequent delays.

Since an ombudsman does not make legally binding decisions, his procedures can be more flexible and informal than those of a court. Furthermore, he can take into account not only legal rights and obligations, but also the idea that, in a democracy, public administration exists to serve the citizens, and not vice versa.

The work of an ombudsman can therefore promote ever higher standards of public administration, in order to meet citizens' rising expectations, without implying that those standards necessarily constitute legal obligations that could be enforced through court proceedings.

The second reason for the rapid spread of the ombudsman in Europe is the institution’s association with democracy and human rights. In Spain, Portugal, and Greece, for example, ombudsmen were established following the transition from authoritarian to democratic systems of government.

More recently, after the fall of communism, ombudsmen were established in the new democracies of Central and Eastern Europe, often with a role specifically focused on human rights.

The Council of Europe has played, and continues to play, a very important role in promoting the ombudsman institution in those countries.

The ombudsman institution in the European constitutional order

In Europe, and especially in the European Union, these two historical developments – the exponential growth of public administration and the spread of democracy and human rights – are converging, I believe, towards a common trajectory.

The deliberate provision of choice, such as the opportunity to decide between alternative avenues of redress against the public administration, constitutes a distinct feature of pluralist democracy. In turn, the capacity to provide citizens with choice serves to enrich the range of "products" such a democracy can offer its citizens and so enhances its quality.

The development of the ombudsman institution in Europe thus contributes to, and also constitutes a product of, the success of pluralist democracy in our continent.

At the same time, the effective realisation of human rights --especially (but not exclusively) cultural, economic and social rights -- depends in large part on the quality of public administration. This is why the Charter of Fundamental Rights of the EU includes the right to good administration as a fundamental right of citizenship.

Moreover, although the principles of good administration may sometimes require more than respect for legal rights and obligations, they never require less. Unlawful administrative behaviour, using that term broadly to include violation of legal principles and of human rights, is always maladministration.

Thus an ombudsman’s work with complaints not only empowers citizens and strengthens democracy, but also widens access to justice and so helps reinforce the rule of law.

Finally, as well as reacting to complaints, an ombudsman can also work proactively to promote the rule of law, respect for rights and an administrative culture of service to citizens.

Success in the proactive role makes it less likely that disputes between citizens and the public administration will arise and more likely that the administration itself will speedily resolve those disputes that do arise.

The ombudsman institution thus reflects, as well as helps maintain, the quality of an evolving European constitutional order that embodies pluralist democracy and the rule of law as fundamental principles.

3 The European network of ombudsmen

Subsidiarity in remedies

Within the European Union, subsidiarity is another fundamental principle of governance.

Subsidiarity has many aspects and I do not need to mention them all. The first aspect that is relevant for present purposes is that EU law and policies are, for the most part, administered by the public authorities of Member States at the national, regional and local levels.

In practice, therefore, the rule of law, and respect for individual rights deriving from EU law, depend largely on the quality of administration in the Member States and the availability of effective remedies when needed.

As is well known, one of the greatest success stories of European integration has been the development of subsidiarity in judicial remedies.

One of the first landmarks was a case from Italy -- Costa v Enel(1) -- in which the Court of Justice said that the EEC Treaty had created its own legal system, which had become an integral part of the legal systems of the Member States and that their courts are bound to apply it.

That was just the beginning. The Court of Justice went on to develop an abundant case-law which empowers and gives responsibility to national judges to provide effective remedies against public authorities of the Member States, in order to protect individual rights under EU law.

I am convinced that the logic of subsidiarity should also apply to non-judicial remedies.

As European Ombudsman, my mandate is limited to the institutions and bodies at the level of the Union. I cannot investigate complaints against public authorities in the Member States, even when rights under EU law are involved.

It is my counterparts in the Member States, at the national, regional and local levels, who are competent to deal with complaints that public authorities in their Member State have failed to apply EU law, or to respect rights under EU law.

The first steps in co-operation between ombudsmen in the Union

For this reason, the first European Ombudsman gave high priority, almost from the beginning of the office, to establishing cooperation with the national ombudsmen.

The initial concrete step following a seminar held in Strasbourg in 1996 was to create a network of liaison officers, with the aim of promoting the flow of information about Community law and its implementation and the transfer of complaints to the body best able to deal with them.

To help colleagues interpret and apply EU law correctly in the cases which they handle, the European Ombudsman agreed to receive queries on a voluntary basis. We either answer the queries directly or pass them on to the responsible Community institution, usually the Commission.

A pattern was established early on for organising seminars of the national ombudsmen, in principle every two years, as well as regular meetings of the liaison officers. Effective means of communication were also developed, through a lively website and internet summit, an electronic daily news service and a biannual newsletter.

The scope of co-operation was later expanded by inviting regional ombudsmen to join in the communications activities. Furthermore, in agreement with the European region of the International Ombudsman Institute (IoI), the original newsletter for liaison officers was merged with the IoI’s newsletter for Europe and now covers all the members of that region.

Then in 2003, at the fourth seminar of national ombudsmen held in Athens, the decision was taken to invite ombudsmen of countries that are candidates for EU membership to join the network.

The European Network of Ombudsmen

At last year’s fifth seminar of national ombudsmen in The Hague, we agreed systematically to use the name European Network of Ombudsmen and discussed how to reinforce our co-operation and make it more visible to citizens and policy-makers.

With an eye to strengthening the Network, I made a commitment in The Hague to invest more of the European Ombudsman resources in further developing our capacity to use the internet to communicate both with the public and amongst ourselves.

We are also working towards the preparation of a statement that explains to citizens what they can expect, if they turn to an ombudsman in the Network. The idea is to discuss and eventually adopt the statement at our sixth seminar, in Strasbourg next year, which I shall host jointly with the French Médiateur de la République.

The statement will not only have to comply with the principle of subsidiarity, but also take into account the flexibility of the ombudsman institution and how it has been adapted to a variety of local institutions and cultures.

Respect for subsidiarity and variety also includes taking account of the importance of the regional dimension of ombudsmanship in some Member States, including, of course, Italy.

To ensure that the views of regional ombudsmen are adequately represented in the discussion of the statement to citizens, I shall invite regional colleagues in each Member State where they exist to nominate a representative to take part in the 2007 seminar in Strasbourg, in addition to the relevant national ombudsman.

In recognition of the fact, however, that the distinctive concerns of ombudsmen at the regional level fully justify a separate meeting, I committed myself in The Hague to co-organise such meetings with regional colleagues on a biennial basis, in alternate years from meetings of the national ombudsmen. The 2006 meeting will take place in London next month.

One of the most important shared objectives of the European Network of Ombudsmen is to ensure that complaints about failure to respect rights under EU law are addressed to the body that is competent to deal with them.

My website will soon be updated in a way that provides easily accessible information to potential complainants about the members of the Network and their competences.

In practice, however, there are always likely to be complainants who think that, if EU law is involved, the European Ombudsman is the person to deal with the complaint. My office aims rapidly to transfer such complaints to the competent ombudsmen, or inform the complainant whom to address.

For example, we normally transfer complaints against French public administration to the Médiateur de la République, whose law makes specific provision for the European Ombudsman to make such transfers.

To take another example, our interlocutor at the Federal level in Germany, is the Committee on Petitions of the Bundestag. The Committee is a full member of the International Ombudsman Institute and deals with petitions in a way that is functionally equivalent to an Ombudsman’s role in handling complaints.

At the regional level, all the German Länder have a committee on petitions, or an ombudsman, to whom we can transfer complaints.

In fact, within the existing Member States, it is only in the case of Italy that we are sometimes unable to find an ombudsman who could help the complainant. My staff has prepared a list of examples of cases where the absence of an ombudsman at the national level, or in some of the regions, has had this unfortunate consequence.

4 Establishing a new ombudsman office

I come now to the third and final topic of my speech, that is to say, the key issues to address in establishing a new ombudsman office.

As European Ombudsman, I have visited my national colleagues in the 24 EU Member States which have an ombudsman or similar body at the national level. One of the things that I have retained from these visits is a profound sense of the diversity of the ombudsman institution.

Equally strong, however, is my impression that, to a very considerable extent, we all share a common understanding of the core elements of what an ombudsman should be and do.

Allow me briefly to sketch some of the basic outlines of this common understanding.

First and foremost, an ombudsman must be demonstrably impartial and non-partisan. To achieve this, legal guarantees of independence covering personal, operational, and institutional dimensions of the office are an essential prerequisite.

Personal independence needs to be secured by appointment for a sufficiently long period, through a procedure that is designed to achieve a wide, cross-party, consensus in favour of the selected person. An ombudsman is not normally associated with a particular political party, but is appointed on the basis of expertise, professional experience, integrity and the ability to communicate with, and be recognised by, citizens. So as to avoid possible conflicts of interest, an ombudsman should not hold other offices or undertake other activities.

Operational independence requires sufficient powers to carry out effective inquiries, including the right to inspect all official documents, as well as a guarantee that investigations can be carried out free from outside pressure or instructions. It should be for the ombudsman to decide whether a complaint falls within his competence and what inquiries, if any, are justified.

Institutional independence includes the power to determine goals, strategies and priorities, to make and publish reports and recommendations, as well as a budget that includes adequate financial and human resources. The various stages of the budgetary process - preparation, execution and accounting - also need to be structured in ways that protect the ombudsman from undue external pressure.

Making the work of the ombudsman open to public scrutiny is an integral part of independence. An annual report to parliament is a particularly important method of ensuring such accountability.

An ombudsman should also have power to conduct inquiries on his own initiative and to recommend not only redress for individuals, but also broader changes to laws and administrative practices.

5 Conclusion

Friends and colleagues, as a long-time student of politics and as an academic specializing in political science, I am persuaded both that the design of institutions is of fundamental importance in promoting democracy, the rule of law and respect for human rights, and that we can identify useful general principles to guide the process.

However, both social science theory and experience as a practising Ombudsman have convinced me that successful institutional design must be context-specific: what functions well in a particular legal, constitutional and political environment may function differently, or even not at all, in a different environment.

It is for you to consider how best to adapt the experience of the ombudsman institution in other countries and at the regional level in Italy, so as to create an effective institution at the national level. I am available and happy to assist you, if asked either today or at a later stage of the process.

I wish you every success in this endeavour and look forward to the day when the European Ombudsman will have a counterpart at the national level in every Member State and, most importantly, when European citizens will have the possibility of a non-judicial remedy in case of a dispute with a public authority in any Member State of the European Union.

Thank you for your attention.

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(1) Case 6/64, Costa v ENEL 1964 ECR 585