Speech by the European Ombudsman, Mr P. Nikiforos Diamandouros at the event organised by Institute of International and European Affairs

I. Introduction

Good afternoon, Ladies and Gentlemen.

I am delighted to be back in Dublin and particularly pleased to be speaking at an event organised by the Institute of International and European Affairs. A number of years ago I had the opportunity to speak to your Brussels Branch. I am therefore well aware of the Institute’s valuable role as a forum for discussing issues that are of great importance for citizens.

This afternoon, I have been asked to speak on the subject of making the EU accountable to its citizens. I will look at this subject from three perspectives:

o First: the possibility of complaining to the Ombudsman on transparency issues

o Second, I will look at how the Ombudsman empowers citizens in the context of the Commission’s role in making sure that Member States implement Union law correctly, that is to say, the so-called “infringement procedure”.

o Finally, I will look forward, by speaking about the Ombudsman's role in making the European Citizens' Initiative work effectively as a means of empowering citizens.

I plan to speak for around 30 minutes. I will then be happy to take your questions

II. Ireland, its citizens and the EU

If Greece, my home country, is seen as the cradle of philosophy, Ireland is seen as the abode of poetry. In that context, let me quote a line from Yeats, according to whom "Romantic Ireland's dead and gone". What one might call Ireland's “teenage romance” with the EU is certainly over. The difficulties in convincing Irish citizens to ratify the Treaties of Nice and Lisbon left its EU partners surprised and concerned. Surely, they asked, Ireland's love affair with Europe has not ended?

Ireland's love for what was originally the European Economic Community, later the European Community and finally the European Union, was perhaps, if you permit me, blind love. It was blinded by the felt need to end centuries of Irish isolation from its European partners. It was blinded by the need to end decades of economic stagnation, which had decimated Irish society. Like teenage love, this love was intense, but perhaps not very deep.

Ireland's relationship with the EU has matured and deepened. Irish citizens now ask probing questions about what the EU is and how it works. They question, for example, whether the EU and its institutions are accountable to them, the citizens. Rather than recoil from this development in how Irish citizens perceive the EU, I welcome it as an opportunity to show how the EU could and should seek to empower its citizens.

III. European citizenship

There is a school of thought that would argue, in outline, that cultural identity is a necessary precondition of political community, and that since there is no European cultural identity and no European demos, there can be no meaningful European citizenship.

However, when we talk about European citizenship, we cannot understand the term as nation states tend to understand it; that is to say, in terms of cultural identity or membership in a community that defines itself through elements, such as language, history, religion and shared social norms. That is not the reality of the European Union, nor is it likely to become the reality in the foreseeable future.

European citizenship, in contrast, focuses instead on "citizenship" as a bundle of rights and duties. More specifically, European citizenship focuses on the mutual rights and duties in the evolving relationship between individuals and the EU.

My vision of the role of the European Ombudsman includes, as an important component, a special responsibility to nurture and promote the rights of EU citizens in this evolving relationship.

IV. The right to complain to the Ombudsman

The Treaty of Rome, which was the Treaty the Irish people examined in the referendum of 1972, thus paving the way for Irish accession in 1973, did not mention the word "citizen". Nor was the "Europe" which Ireland joined in 1973 a "Europe" designed for citizens. It was, as I have mentioned, the European Economic Community. This was a Europe designed by Member States primarily to serve their economic interests. Individuals had few direct rights and few direct duties in that system. However, faced with the ever increasing role of Europe in the every day lives of citizens, and calls, especially after the collapse of the Soviet Union and the spread of democracy in the wider European region, to deal with the so-called "democratic deficit", Europe has, since the 1970s and 1980s, moved slowly, but steadily, towards recognising and empowering its citizens.

With the Maastricht Treaty of 1992, citizens of the Member States also became citizens of the Union. This development brought with it a raft of provisions which sought to give substance to EU citizenship.  In this context, the Maastricht Treaty provided for the creation of the European Ombudsman. It was also the first Treaty to mention transparency, as a right of citizens and an obligation for EU institutions

V. The Ombudsman and transparency in the EU

It is not by chance that, tucked in between the right to good administration in Article 41 of the EU's Charter of Fundamental Rights, and the right to refer cases of maladministration to the Ombudsman in Article 43, one finds the right of access to documents held by the EU institutions.

Promoting transparency is directly linked to good administration and good governance because, without transparency, citizens cannot hold the EU institutions to account. How can citizens be empowered in relation to governing institutions if they cannot know what those institutions are doing and why they are doing it?

Two own-initiative inquiries by the Ombudsman in 1996 and 1999 resulted in almost all the EU institutions (including the European Central Bank) adopting rules on public access to documents. Moreover, on the basis of his experience dealing with complaints alleging lack of transparency, the Ombudsman participated actively in the debate leading to the adoption of Regulation 1049/2001, which is the Regulation requiring the European Parliament, the Council and the Commission to grant, on request, public access to documents in their possession.

Year after year, lack of transparency, or refusal of access to documents, have been the biggest reasons for complaining to the Ombudsman. The main issues raised in such complaints are:

• excessive delay in dealing with request for access to documents;
• excessively expansive interpretations of the exceptions to public access; and
• failures to have a public register of documents to facilitate the exercise of the right of access.

Applicants who are denied access to a document under Regulation 1049/2001 may either go to the EU General Court to seek the annulment of the decision refusing access, or turn to the European Ombudsman.

The right to a judicial remedy is, of course, a fundamental guarantee of the rule of law. The obvious advantage of going to court is that the outcome is a legally binding decision. As regards public access to documents, this means that the General Court can annul a decision refusing access, thereby obliging the institution holding the documents to review the request and make a new decision.

The Ombudsman’s role is complementary to that of the courts: it provides an alternative remedy that applicants may use, if they consider it appropriate in their case. During 2010, we completed inquiries into 22 complaints concerning the application of Regulation 1049/2001, 14 of which concerned the European Commission.

One main advantage of the non-judicial remedy that the Ombudsman represents is that he inquires into whether or not there has been maladministration. European institutions must respect the rule of law, so, if they act unlawfully, that is maladministration. However, principles of good administration require more of the institutions than merely avoiding unlawful behaviour.

Let me illustrate what I am saying with an example.

Regulation 1049/2001 is primarily about dealing with requests for public access to documents. It is therefore, essentially, reactive rather than proactive in nature.

Last year I made a Draft Recommendation concerning a refusal to provide an Irish citizen with copies of adverse drug reaction reports that he had requested from the European Medicines Agency. I pointed out to the Agency that, alongside its legal obligation to respond properly to requests for public access under Regulation 1049/2001, it should also, as a matter of good administration, be proactive in making, information available to the public, for example on its website.

I am happy to note that the Agency is making efforts to comply with my Draft Recommendation.

The point I made to the Agency is of general application. The principle of transparency implies that every EU institution should proactively identify what information the public needs and then disseminate that information in a manner that the public can easily understand.

When the EU institutions are working in areas which are technically complex, such as the safety of medicines, it is especially important to present information in a language that can be easily understood by the public. The proactive efforts of the EU institutions to provide information will normally, therefore, involve the preparation and publication of new material, as well as the provision of access to existing documents.

In deciding what, when and how to publish proactively, the institutions necessarily have to exercise judgment based on their knowledge of the specific characteristics of their field of work.

It is worth noting that my dialogue with the European Medicines Agency, which focused on good administration rather than simply complying with the legal rules, is not something which courts can do.

This example illustrates well how the Ombudsman's focus on maladministration, rather than on questions of strict legality, brings added value for citizens, when compared to the system of judicial remedies.

VI. The Ombudsman's experience with Regulation 1049/2001

The adoption of Regulation 1049/2001, the regulation requiring public access to documents, was a milestone in the development of transparency at the EU level.

Only a few years earlier, the EU institutions operated on the basis that confidentiality was the rule and that giving access to information and documents was a discretionary exception to that rule. Regulation 1049/2001 enshrines the opposite principle: openness is the basic rule and secrecy is the exception.

Mindsets and culture, however, change more slowly than laws. Although great progress has been made so far, I do not consider that the administrative culture of the EU institutions has yet fully come to terms with openness as a basic principle.

I am, nevertheless, convinced that, as a result of the Regulation, the public's ability to monitor the exercise of power by the Union’s institutions has perceptibly increased. The Regulation empowers citizens in relation to the flow of information: they can take the initiative to obtain information, in its original context, that has not yet been put into the public domain.

Moreover, the quality of the institutions’ systems for managing and retrieving information and documents has improved, thereby enabling them to operate more efficiently and effectively, as well as more transparently.

The implementation of the Lisbon Treaty and a legally binding Charter of Fundamental Rights should mark a further step forward in terms of increasing transparency in the Union.

VII. On-going Review of Regulation 1049/2001

On 30 April 2008, the Commission put forward a proposal to amend and replace Regulation 1049/2001. Discussions on this legislative revision are still ongoing.

It is essential that any revision of Regulation 1049/2001 should be a step forward for transparency and for European citizenship, not a step backward. Any reform of the Regulation should be guided by what I believe was its original objective; that is to say, facilitating the widest possible access to documents held by the Institutions, so as to enable citizens to scrutinise and participate in processes of governance at the Union level.

The Commission's proposal to revise the Regulation contains a number of welcome changes. At the same time, it has been widely criticised by many, including myself, for moving in the wrong direction on some issues, and thereby restricting rather than expanding access to documents.

One argument put forward by the Commission to justify its proposal is that the citizens, for whom the Regulation was devised, rarely make use of it. To me the use of this argument betrays a fundamental misunderstanding of the purpose of transparency. Transparency should lead to a change in culture within the institutions, and to a more open and accountable way of working.

The most important development since the Commission presented its proposal is, of course, the entry into force of the Treaty of Lisbon. It would be contrary to the announced objectives of the Lisbon Treaty to do anything else but to improve the level of transparency and accountability in the functioning of the EU.

I have already mentioned that the Lisbon Treaty introduces, in Article 41 of the Charter, a legal right to good administration. It states, inter alia, that “[e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union”. This is of importance. Even if the rules on public access are in place, citizens cannot enjoy their rights fully unless these rules are also well-administered.

I want to lay stress on the words “within a reasonable time”. I regret that the experience of the Ombudsman is that the Commission, in particular, too often fails to respect the deadlines established by Regulation 1049/2001 for dealing with public access requests. Even worse is the Commission’s performance when citizens complain to the Ombudsman in access to documents cases.

The Commission is creating a systemic problem in incurring these delays. It is depriving citizens of their fundamental right to have their affairs handled within a reasonable time.

A systemic problem requires systemic solutions, and it is for this reason that I consider that one effective way of tackling it would be the appointment in each institution and body of information officers, by analogy with data protection officers that already exist in the EU institutions and bodies.

Another systemic improvement would be to take steps to ensure that documents are drafted with a view to ensuring that citizens, organisations, and businesses can have the widest possible access to them. Less time would then be needed to deal with applications, fewer confirmatory applications would be needed, and the Commission would be better able to respect the deadlines in the Regulation. At the moment, when dealing with complaints about refusal to disclose a document, I often have the impression that no-one thought about public access when the document in question was drafted. Or if they did think about it, they did so defensively, with a view to obstructing, not facilitating, public access.

A third systemic improvement would be to make it unnecessary even to make an application for public access, by providing a useful, online register of documents and ensuring that the registered document is readily available through a link. Like that, the citizen can obtain the document directly, without having to make an application for access.

The EU institutions already make a vast number of documents accessible on-line. But mere quantity is not enough. The good administration of access to documents involves proactively making available the documents that people actually want and organising their availability in such a way that they can be found easily.

The creation and maintenance of a complete and effective register is an essential aspect of engagement with citizens. Such engagement should be seen as part of the core business of every institution in order to fulfil the Union’s promises of transparency, participation and good administration.

VIII. Empowering citizens by supervising the supervisor

After lack of transparency, the next most important subject of complaints submitted to me concerns how the Commission carries out its role in ensuring the Member States comply with EU law. In this sense, you could refer to me as the supervisor of the supervisor.

The European Commission is empowered by the Treaties to ensure that Member States apply EU law fully. This includes the power to bring Member States before the European Court of Justice and, eventually, to request the Court to impose fines on Member States in case of non-compliance.

Citizens have a strong interest in ensuring that the Commission carries out this role of supervisor correctly, given that failures by Member States to comply with EU law very often result in citizens' rights under EU law not being respected.

A complaint I received from an Italian citizen illustrates this situation. For many years, he had sought to ensure that the largest landfill site in Italy, located near his home at Malagrotta in Rome, was brought into compliance with EU environmental law. He complained to me that the Commission had not correctly investigated the failure of the Italian public authorities to make this happen

If a citizen is unhappy about how the Commission has exercised its supervisory role as "Guardian of the Treaties", he or she cannot bring the issue to the EU courts. As lawyers say, she or he has no “standing” before the court. In effect, the Commission has immunity from the judicial review of its actions in dealing with infringement complaints. This is why the Ombudsman’s role in supervising the supervisor is especially important in this area.

The case-law makes clear that the Commission has the right, but not the obligation, to proceed with infringement cases against Member States. Thus, even if the Commission were to take the view that a Member State is not in compliance with EU law, it is not obliged to take the case any further. For example, it is not obliged to bring a Member State before the Court, even if it takes the view that the Member State is not in compliance with EU law.

In this context, it is not surprising that the Commission reacted to the first inquiries by the Ombudsman by insisting on its discretion in such cases and by pointing out that complainants do not possess any specific procedural rights.

However, the Commission has come a long way since those early days. It has, with my and my predecessor's encouragement, come to recognise that, even though it has no legal obligation toward citizens to account for its actions, it is good administration to take due account of the interests of citizens who make complaints to it about infringements of EU law by Member States. It therefore has agreed to register complaints it receives from citizens and to keep these complainants informed of the treatment of the case.

As regards undue delays in dealing with complaints, the Commission adopted an internal rule that, within a maximum period of one year from the date on which a complaint is registered, there must be a decision either to close the file, or to send a letter of formal notice to the Member State.

The Commission has also indicated its willingness to inform the complainant of its intention to close a file and to inform a complainant as to the reasons why it intends to close the file. This means that complainants could respond to the Commission’s point of view before it commits itself to a final conclusion.

I have also encouraged the Commission to indicate to complainants, if it decides to close a case, what remedies may be available to them at the national level. These may include making recourse to the national courts, or to the national or regional ombudsmen.

While my role as "supervisor of the supervisor" does not limit the Commission's discretion, as regards managing infringement proceedings against Member States, my actions have empowered citizens by encouraging the Commission to account to citizens for how it exercises its discretion in this area.

IX. European Citizens' Initiative

I have so far explained two areas where, the European Ombudsman has helped EU citizens over the 15 years since the institution first commenced working. Let me now look forward to an area where I may be able to provide assistance in the future.

The European Citizens' Initiative is one of the important innovations of the Treaty of Lisbon. The relevant provision of the Treaty reads as follows: "Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties."

I am convinced that the Citizens' Initiative can and should make a major contribution to the empowerment of European citizens.

Last week, on 14 February 2011, the Council adopted a Regulation setting out details of how the European Citizens' Initiative will work in practice. These new rules, which will become effective in early 2012, will allow at least one million citizens from at least one quarter of EU Member States to invite the European Commission to bring forward legislative proposals in areas where the Commission has the power to do so. The organisers of a Citizens' Initiative, a citizens' committee composed of at least seven citizens who are residents of at least seven different Member States, will have one year to collect signatures and the Commission will have three months to examine an initiative and decide how to act on it.

The Citizens' Initiative is, in my view, a key step forward in the democratic life of the Union. It is a concrete example of bringing Europe closer to its citizens. I believe that it will foster a cross border debate and thus contribute to the development of a real European public space. It is thus important that the new rules seek to ensure that the procedures for launching a Citizens' Initiative are simple, user-friendly and accessible to all.

I will carefully review how the Commission acts in relation to Citizens' Initiatives. I will first seek to ensure that the registration of Citizens' Initiatives by the Commission does not fall foul of bureaucratic obstacles. I will also seek to ensure that the Commission acts as transparently as possible as regards the registration of Citizens' Initiatives. I will also look carefully at my procedures for dealing with complaints on these matters, with a view to ensuring that they are as rapid and effective as possible.

Once the a completed Citizens' Initiative is presented to the Commission, I will seek to ensure that the Commission sets out properly, and in public, its conclusions on the initiative and clearly states the action, if any, it intends to take. I will finally seek to ensure that the Commission complies with its commitment to explain its actions in a transparent and complete manner.

X. Conclusions

Let me conclude by taking a step back, to look at the big picture.

Institutions, be they at national level or at EU level, cannot work well unless they are perceived as legitimate by the citizens. Empowering EU citizens, by making the EU institutions accountable to them, helps the institutions to gain and maintain the trust of citizens and so contributes to their legitimacy.

Compared with national institutions, the EU institutions are faced with an added difficulty when seeking to gain and maintain the trust of citizens. EU institutions seem, for many citizens, to be distant and complex. That means they must work doubly hard to gain and maintain trust.

My role is to ensure, on a day-to-day basis - for the struggle to empower citizens never ends - that the EU institutions continue to work hard at making themselves accountable to citizens.

Success in the pursuit of this goal will be good for citizens, good for the rule of law in the EU, and good for democracy in the Union.

Thank you for your attention.  I am ready to answer questions or comments.