(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

During the course of 2004, the complainant (an association for the defence of the German language) wrote to the Dutch and the Luxembourg governments in order to ask them to offer the internet presentations they were to provide when holding the Presidency not only in English and French but also in German. The complainant pointed out that more EU citizens had German as their mother-tongue than any other language and that, after the accession of the new Member States, German would rank second if one added the number of EU citizens speaking a language as their mother-tongue or as a foreign language. It stressed that, next to English, German was thus the language understood by most EU citizens. The complainant further submitted that communications by EU institutions that were mainly addressed to the European public should be accessible to as many EU citizens as possible. Where the number of languages used was limited, this choice should, in the complainant's view, be based on the demographic weight of these languages. The complainant therefore took the view that it was not comprehensible why the Presidency normally only used English and French, in addition to the language of the country concerned, for their internet presentations. In the complainant's view, its claim that German should be used as well was also supported by the need for democratic legitimation in the EU.

Both the Dutch and the Luxembourg governments rejected the complainant's request. The complainant's letter to the Dutch government of 21 April 2004 was only answered on 6 August 2004. The letter to the Luxembourg government of 2 September 2004 was only dealt with on 18 November 2004. The Dutch authorities furthermore replied to two e-mails sent by the complainant in English, although a reply in German had been requested.

On 13 December 2004, the complainant submitted a complaint against the Council of the European Union to the Ombudsman (case 3634/2004/WP). This complaint concerned (1) the choice of languages for the internet presentations of the Presidency, (2) the way in which the requests to the Dutch and Luxembourg authorities had been handled; and (3) the fact that the Dutch authorities had used English in some of their replies.

On 11 January 2005, the Ombudsman rejected this complaint on the basis of Article 2 (4) of his Statute, which requires that a complaint should be preceded by appropriate prior approaches to the institution concerned. The Ombudsman pointed out that he considered it appropriate that the complainant should first approach the Council itself.

On 22 January 2005, the complainant wrote to the Council in order to request it to ensure that the internet presentations of the Presidency would also be available in German. The complainant forwarded to the Council a copy of case 3634/2004/WP and of the Ombudsman's decision on that complaint.

In its reply of 4 March 2005, the Council pointed out that it would only deal with the first of the three issues raised by the complainant in his complaint to the Ombudsman.

The Council confirmed that the Presidency was functionally part of the Council. It submitted, however, that this did not mean that the website of the Presidency was subject to the same conditions as that of the Council. The Member State holding the Presidency was solely responsible for the information published on its website. According to the Council, Presidency websites only complemented the information that was made available to citizens by the Community institutions in all the official languages. In this context, the Council referred to its own website and to the number of documents available thereon. It also referred to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(2) ("Regulation 1049/2001") and the possibilities it offered.

The Council noted that the Ombudsman had already had occasion to deal with the linguistic practice of the Presidency and of the Commission. Case 939/99/ME concerned the fact that the Commission's calendar on the "Europa" website was only available in French. The Commission had submitted that this document was only intended for the press. In his decision of 14 June 2000, the Ombudsman held as follows: "The Ombudsman notes that there are 11 official languages and 12 Treaty languages in the European Union. Certain documents must therefore be produced in all these languages. However, there is no obligation for the Commission to produce all documents in several languages when this does not appear necessary for the purpose of the document. The Ombudsman is not aware that the provisions of Community law concerning use of languages could prevent a Community institution or body from publishing on a Website documents in the language in which they are drafted. Although it is essential that the Commission informs citizens of its work in all the languages, the Commission's practice in the present case has not revealed any failure by the Commission to fulfil this obligation."

In 2001, an Italian citizen complained about the fact that the contents of the internet presentation of the Belgian Presidency were only available in Dutch, English, French and German (case 1146/2001/IP). In his decision of 10 September 2002, the Ombudsman took the view that, as far as possible, the Union institutions and bodies should provide information to citizens in their own languages. He had added, however, that he was not aware of any rule or principle that forbade them to publish information on their websites in less than the full number of official languages.

The Council submitted that the relevant legal framework had not changed since the time when these decisions had been adopted but that the number of official languages had increased to 21, thus increasing the logistical problems as regards the language scheme. It added that both itself and the respective Presidencies were doing their best to ensure that citizens received as much information and in as many languages as possible. The Council stressed, however, that it did not have any influence on the choice of the languages in which the Presidency offered its own information.

On 1 April 2005, the complainant wrote to the Ombudsman again, asking the latter to resume the handling of its complaint. This letter was therefore registered as a new complaint (case 1487/2005/GG). The complainant called on the Ombudsman to use all his influence to convince the United Kingdom, as the then holder of the Presidency, of the need for a German version of the Presidency's internet presentation. It further asked the Ombudsman to speak out in favour of this need as regards all future Presidencies.

The complainant added detailed comments on the Council's letter of 4 March 2005. In these comments, it submitted that the Council had not established its point of view, for example, by reference to a rule to that effect. The complainant stressed that the Presidency shared the obligations incumbent upon the Council of which it formed part. It also noted that the Ombudsman had made a further remark in his decision in Case 939/99/ME that was worded as follows: "In the present case, the Commission explained its practice with the nature of the calendar and its limited target audience. Although the Commission's argument is not unreasonable, the Ombudsman would like to underline that, as a service to the citizens and the press, it is essential that documents directed to people outside the Commission, are available in as many languages as possible. It would be helpful if such material would be available in at least the three most widely spoken languages German, English and French. The Ombudsman welcomes the plans of the Commission to establish a more long-term calendar in several languages."

The complainant also submitted that the Ombudsman's decision in case 1146/2001/IP did not appear to be relevant to the present case, given that the complainant in that case had asked for all official languages to be used, whereas the complainant's argument was that, if the number of languages was to be limited, this should not be done to the disadvantage of German. In the complainant's view, the logistical problems due to enlargement, to which the Council had referred, could only justify a limitation of the languages used for the internet presentations of the Presidency, but not an unfair selection of these languages.

The complainant submitted that the position adopted by the Council was not in conformity with Regulation 1049/2001. In this context, the complainant argued that documents of the Presidency were Council documents within the meaning of that Regulation and that the term "document" also covered material published on websites.

The complainant thus alleged that the Council's failure to ensure that the internet presentations of the Presidency were also made available in German constituted maladministration. It claimed that the Council should see to it that the internet presentations of the Presidency were also made available in German henceforth.

THE INQUIRY

The Council's opinion

In its opinion, the Council made the following comments:

The complaint (i) concerned the failure of the internet site of the Presidency of the Council to respect multilingualism and (ii) also seemed to allege that the Council's own website failed to provide sufficient access in the German language.

Article 203 of the EC Treaty provides that "[t]he office of President shall be held in turn by each Member State in the Council for a term of six months in the order decided by the Council acting unanimously" (emphasis added).

The Presidency's website was organised and run by the relevant ministry in the Member State concerned. This was clear from the websites themselves. Such websites did not aim to replace the Council's website and register of documents, but sought to complement them. They provided practical information on activities unique to each Presidency such as, for instance, informal meetings, cultural events and other Presidency activities and initiatives.

It was true that Presidency documents counted as Council documents for the purpose of applying Regulation 1049/2001. However, this was an entirely separate matter, which did not in any way imply that the Presidency's website was under the Council's control.

The complainant argued that there was nothing in the Council's Rules of Procedure that substantiated the view that the Presidency bore sole responsibility for the information on its website. This, however, turned things around: the Council simply had no power to order a Member State to organise its websites in a particular manner. It followed that, independently of the substantive question whether the Presidency's website ought to provide information in German (a matter of Member State law and practice to be decided on by the national institutions involved), there could be no maladministration on the part of the Council since that institution bore no responsibility for the Presidency's website.

As regards the Council itself, its own website was available in German as well as in all the other official languages. However, some documents on this website that were intended for journalists were not provided in all official languages. The Ombudsman had accepted that there was no obligation for the institution to produce all documents in several languages when this did not appear necessary for the purpose of the document concerned.

For these reasons, the complaint was unfounded.

The complainants’ observations

In its observations, the complainant made the following comments:

The Council's opinion did not contain any arguments that questioned the reasonableness of the complaint. The complaint was thus maintained in its entirety, with reference both to case 3634/2004/WP and to case 1487/2005/GG.

The Council's opinion contained certain factual inaccuracies.

The reference in the opinion to "the Council's own website" was misleading. The website of the Presidency was a website of the Council. This followed from the fact (which had been acknowledged by the Council) that the Presidency was part of the Council. Accordingly, the complaint concerned the inappropriate handling of the issue of languages in both websites of the Council.

The Presidency could not be a part of the Council without being responsible to the latter.

The contents of the Presidency's website did not only complement the Council's website, but went far beyond the contents of the latter.

The Council recognised that documents of the Presidency were documents of the Council within the meaning of Regulation 1049/2001. However, since the contents of the Presidency website were documents within the meaning of Article 3 lit. (a) of that Regulation and thus Council documents, the Council's position would mean that the Council did not have control over its own documents. This would be a manifestly absurd situation.

The present case did not concern a Member State and "its" (that is to say, national) websites, but the websites set up by a Member State in its capacity as the incumbent of the Presidency. The law and practice of the Member State could only be relevant as regards the activities that were not linked to the Presidency.

The Council's claim that its own website was available in German was contradicted by numerous examples of documents that were only available in English or French(3). The Ombudsman should try and ensure that, as far as this website was concerned, the German language was treated in the same way as English and French.

The Council's argument that it was unable to influence its Presidency, that is to say, part of itself, appeared to be nonsensical. It defied any reasonable consideration that the Council should be unable to address, for example, a request or a recommendation to its own Presidency.

Article 195 of the EC Treaty provides that the mandate of the Ombudsman covers all Community institutions and bodies, with the exception of the Court of Justice and the Court of First Instance. Apart from this exception, no area should exist that could not be the subject of a complaint. It thus had to be possible to complain about the Presidency, either by way of a complaint against the Council or directly against the Presidency. Given that the first route appeared to be blocked by the Council's obstinate refusal, the Ombudsman should now approach the Presidency directly.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and of the observations, the Ombudsman was not satisfied that the Council had responded adequately to the complaint.

In his observations, the complainant asked the Ombudsman to examine further issues going beyond the scope of the inquiry conducted so far. The Ombudsman took the view that it was not advisable to do so, given that extending the scope of the present inquiry would inevitably delay the examination of the issue that appeared to be most important to the complainant (that is to say, the choice of languages for the websites of the Presidency). However, he informed the complainant that he remained free to submit a new complaint concerning these issues to the Ombudsman.

The proposal for a friendly solution

Article 3 (5) of the Statute of the Ombudsman directs the Ombudsman to seek, as far as possible, a solution with the institution concerned in order to eliminate the instance of maladministration and satisfy the complainant.

The Ombudsman therefore made the following proposal for a friendly solution to the Council:

The Council could consider the complainant's request that the internet presentations of the Presidencies should be made available in German as well.

This proposal was based on the following preliminary conclusions:

1 In its letter to the complainant of 4 March 2005, the Council stated that it was undisputed that the Presidency was functionally part of the Council. However, if the Presidency is part of the Council, it follows that it is subject to the same obligations as the latter, unless there are specific reasons why these obligations should not be applied to the Presidency.

2 As the Ombudsman has already pointed out in a previous case, it is essential that documents directed to persons outside the Community institutions should be available in as many languages as possible. One of the most important means of providing information to the public in modern times is the internet. It is therefore particularly important to ensure that the public websites set up by the institutions and bodies of the Community are accessible to citizens in as many languages as possible.

3 Given that the Presidency is part of the Council, the Ombudsman considers that the same standards should in principle apply to any public websites maintained by the Presidency.

4 Member States are obviously free to set up whatever websites they want, subject only to the limitations that may arise under national law. However, the websites concerned by the present case are clearly marked and meant to serve as websites of the "Presidency". These websites provide information about the work of the Presidency, in the capacity assigned to it by Community law. In the Ombudsman's view, these websites can therefore not be considered to be 'national' websites outside the reach of Community law. It is important to underline that the present case does not concern the contents of these websites, that is to say, the issue as to what information the Presidency provides, but the presentation of this information, that is to say, the question as to whether the information should be made available in certain languages.

5 Even if the websites of the Presidency only provided information additional to that which was available at the Council's own website, this information would nevertheless be of interest to the public and should therefore be made available as widely and as well as possible.

6 The Ombudsman is not convinced by the Council's argument that it has no power to order a Member State to organise its websites in a particular manner and that it does not bear any responsibility for these websites. Where a Member State provides a website in its capacity as the incumbent of the Presidency of the Council, it acts as part of the Council. The Ombudsman agrees that it is primarily for the Member State concerned to decide on the contents it wishes to provide on such a website. However, the Ombudsman is not aware of any rule or principle that could prevent the Council from discussing and agreeing on formal aspects of these internet presentations with a view to making the information thus provided as widely available as possible, for example, by discussing and determining which languages should be used for these websites.

7 The Ombudsman considers that, if the number of languages for the presentation of the Presidency's websites is to be limited, the choice of the languages to be used must be based on objective and reasonable considerations. The complainant has submitted what appear to be weighty arguments to establish its view that, after the enlargement of 2004, German has become the second most widely-used language in the EU. In the complainant's view, the Presidency websites should therefore be made available in German as well. In the light of these arguments, the Ombudsman considers that the choice of languages for the websites of the Presidency should indeed be reconsidered.

8 The Ombudsman notes, however, that the Council has so far refrained from taking a position on the substance of the complainant's arguments.

9 In view of the above, the Ombudsman arrives at the preliminary conclusion that the Council's failure to consider the substance of the complainant's request that the websites of the Presidency should also be offered in German could constitute maladministration.

The Council's opinion

In its opinion, the Council made the following comments:

There could only be maladministration on the part of the Council if it had misapplied an existing EU rule. This could not be the case where the Council was not responsible for the action complained about.

The Ombudsman's reasoning was incorrect. Article 203 of the EC Treaty provided that Member States should take turns in holding the office of President. This obviously did not imply that the Member State in question became part of the Council any more than any other Member State. It merely implied that that Member State (as such, not as a member of the Council) was charged with the chairing of Council meetings and the activities that this entailed.

Over past decades, the tradition had evolved that Member States holding the Presidency used this period to promote themselves and organise other activities, which might or might not be related to the work of the Council. As one example, many Member States, when holding the Presidency, organised cultural activities. Such activities, and information pertaining to them, remained under the responsibility of the Member State as such (holding the Presidency). They could obviously not be regarded as Council activities.

Similarly, the websites run by that Member State and/or by its national ministries were set up, financed and managed under the responsibility of the Member State as such (holding the Presidency). They are neither financed nor managed by the Council. As the Council had already noted, this was indeed made clear by the disclaimers that are found on these websites.

The Ombudsman had stated in his proposal for a friendly solution that he was not aware of any rule or principle that could prevent the Council from discussing or agreeing on formal aspects of these websites. This could not be a legal observation, as it would reverse a fundamental principle of EU law. According to Article 7 (1) of the EC Treaty, "[e]ach institution shall act within the limits of the powers conferred upon it by this Treaty." There was no rule that would enable the Council to act on the language regimes applied by a particular Member State. Indeed, the Ombudsman had identified none either. The Council's Rules of Procedure certainly comprised no such rules.

In summary, the fact that these websites were called "Presidency websites" did not put them under the Council's supervision in any way. The websites were not maintained by the Presidency but, in accordance with the terms of Article 203 of the EC Treaty, by the Member State holding the Presidency. There was no legal basis that allowed the Council to require Member States to apply a particular linguistic regime.

The Council concluded by saying that it was therefore unable to consider the Ombudsman's proposal for a friendly solution or to take a position on the substance of the matter which fell outside its remit.

The complainant's observations

In its observations, the complainant maintained its complaint.

The Ombudsman's appraisal

On the basis of the Council's opinion and the complainant's observations thereon, the Ombudsman concluded that no friendly solution could be achieved.

THE DECISION

1 Introductory remarks

1.1 The present complaint is the follow-up to a previous complaint (case 3634/2004/WP) that had been rejected by the Ombudsman on the grounds that the appropriate prior approaches to the Council had not been made. Case 3634/2004/WP had comprised three issues, notably (1) the choice of languages for the internet presentations of the Presidency, (2) the way in which the requests to the Dutch and Luxembourg authorities had been handled, and (3) the fact that the Dutch authorities had used English in some of their replies. The complainant (an association for the defence of the German language) then wrote to the Council. In its reply, the Council only dealt with the issue concerning the choice of language for the internet presentations of the Presidency. The complainant subsequently renewed its complaint to the Ombudsman, stressing the reasons why it considered that the websites of the Presidency should also be offered in German.

1.2 The Ombudsman therefore assumed that the new complaint was limited to the issue concerning the choice of language for the internet presentations of the Presidency. The complainant, which was informed of the scope of the inquiry that had been opened by the Ombudsman, did not raise any objections.

1.3 In its opinion, the Council expressed the view that the complaint might also concern its own website and made some comments on this issue.

1.4 In its observations, the complainant objected to the Council's claim that its own website was in its entirety available in German and asked the Ombudsman to try and ensure that, as far as that website was concerned, the German language was treated in the same way as English and French. The complainant further informed the Ombudsman that it wished to maintain its complaint in its entirety. Since the complainant referred to case 3634/2004/WP in this context, it seemed as if the complainant wished the Ombudsman also to examine the two issues that had been raised in that complaint but had not been included in the scope of the present inquiry.

1.5 In his proposal for a friendly solution (see point 2.4 below), the Ombudsman took the view that it would not be advisable to extend the scope of the present inquiry so as to cover the complainant's further allegations, given that doing so would inevitably delay the examination of the issue that appeared to be most important to the complainant (that is to say, the choice of languages for the websites of the Presidency). He therefore considered that these further issues should not be dealt with in the present inquiry. The Ombudsman informed the complainant that it obviously remained free to submit a new complaint concerning these issues to the Ombudsman. The complainant did not object to the Ombudsman's approach.

2 As regards the choice of languages for the websites of the Presidency

2.1 The complainant alleges that the Council's failure to ensure that the internet presentations of the Presidency are also made available in German constitutes maladministration. It claims that the Council should see to it that the internet presentations of the Presidency are also made available in German henceforth.

2.2 In its opinion, the Council essentially argued that, independently of the substantive question whether the Presidency's website ought to provide information in German (which according to the Council was a matter of Member State law and practice to be decided on by the national institutions involved), there could be no maladministration on the part of the Council since that institution bore no responsibility for the Presidency's website.

2.3 In its observations on the opinion, the complainant stressed that the Presidency was part of the Council and that the latter therefore had to be responsible for the former. The complainant added that it defied any reasonable consideration that the Council should be unable to address, for example, a request or a recommendation to its own Presidency.

2.4 On 20 October 2005, the Ombudsman addressed a proposal for a friendly solution to the Council, inviting the latter to consider the complainant's request that the internet presentations of the Presidency should be made available in German as well.

2.5 In its reply, the Council submitted that there could only be maladministration on its part if it misapplied an existing EU rule. In the Council's view, this was not the case since it was not responsible for the situation complained about. The Council insisted that the websites run by the Member State holding the Presidency are set up, financed and managed under the responsibility of that Member State as such. They are neither financed nor managed by the Council. The Council noted that the Ombudsman had stated that he was not aware of any rule or principle that could prevent the Council from discussing or agreeing on formal aspects of these websites. In the Council's view, however, this could not be a legal observation, as it would reverse a fundamental principle of EU law. According to Article 7 (1) of the EC Treaty, "[e]ach institution shall act within the limits of the powers conferred upon it by this Treaty." The Council submitted that there was no rule that would enable it to act on the language regimes applied by a particular Member State.

2.6 In its observations, the complainant maintained its complaint.

2.7 The Ombudsman considers that the submissions of the parties in the present case make it necessary to address three different issues, namely (1) the circumstances in which maladministration can be found, (2) whether the Council can be held responsible under any circumstances for the websites maintained by its Presidency and (3) whether the choice of languages concerning these websites is compatible with principles of good administration.

2.8 As regards the first issue, the Ombudsman notes that the Council argues that maladministration could only be found if it had misapplied an existing rule. However, this interpretation is too narrow and does not do justice to the concept of "maladministration" laid down in Article 195 of the EC Treaty. The Ombudsman considers that maladministration occurs when a public body fails to act in accordance with a rule or principle binding upon it(4). This definition has been approved by the European Parliament(5). Contrary to what the Council assumes, maladministration can thus not only be found in cases where a rule has been violated.

2.9 As regards the second issue, it should be noted that Article 203 of the EC Treaty provides that "[t]he office of President shall be held in turn by each Member State in the Council for a term of six months in the order decided by the Council acting unanimously". As the Council correctly observed in its opinion on the Ombudsman's proposal for a friendly solution, this does not mean that the Member State as such becomes part of the Council. When a Member State holds the Presidency that means that this Member State has, for a limited period of time, the office of presiding over the Council. In this sense, however, the Presidency is clearly part of the Council. The Ombudsman notes that the Council itself stated, in its letter to the complainant of 4 March 2005, that it was undisputed that the Presidency was functionally part of the Council.

2.10 The Ombudsman considers that, being functionally part of the Council, the Presidency ought to be subject to the same obligations as the latter, unless there are specific reasons why these obligations should not be applied to the Presidency.

2.11 It is obvious that this conclusion only applies to the extent that the Member State concerned is acting in its capacity as President of the Council. As the Council correctly observed in its opinion on the Ombudsman's proposal for a friendly solution, the fact that a Member State holding the Presidency organises cultural activities during the time of its Presidency does not allow these activities to be regarded as Council activities. Such activities indeed remain under the responsibility of the Member State as such.

2.12 The Ombudsman considers, however, that a different conclusion is justified in so far as the websites maintained by the Presidency are concerned.

2.13 The Council argues that the question as to what languages should be used for the websites of the Presidency is a matter to be determined by the law and practice of the Member State that holds the Presidency. According to the Council, the Presidency alone is responsible for the information published on these websites.

2.14 Member States are obviously free to set up whatever websites they want, subject only to the limitations that may arise under national law. It should be noted, however, that the websites concerned by the present case are clearly marked and meant to serve as websites of the Presidency. These websites provide information about the work of the Presidency, in the capacity assigned to it by Community law. In the Ombudsman's view, these websites can therefore not be considered to be 'national' websites outside the reach of Community law. This is particularly true in view of the importance that the Council itself ascribes to the work of the Presidency. On its own website (http://www.consilium.europa.eu), the Council makes the following statement under the heading "Presidency websites": " The Presidency of the Council plays a vital part in the organization of the work of the institution, notably as the driving force in the legislative and political decision-making process. It has to organize and chair all meetings and work out compromises capable of resolving difficulties."

2.15 The fact that these websites are maintained by the authorities of the Member State concerned and that they contain express references to this effect does not affect the above conclusion. Since Article 203 of the EC Treaty provides that individual Member States shall in turn hold the Presidency, it appears only natural that the websites of the Presidency are maintained by the authorities of the Member State holding the Presidency. Nor does the Ombudsman consider it relevant that the costs for these websites appear to be borne by the Member State concerned. This fact would not prove that the relevant activity cannot be regarded as an activity of the Presidency acting in its capacity as part of the Council. There is furthermore nothing to suggest that these costs necessarily have to be met by the individual Member States. Given that the Presidency is functionally part of the Council, it does not appear excluded to argue that the costs of the relevant websites could be charged to the Community budget.

2.16 The Council's main argument appears to be that in its view it has no power to order a Member State holding the Presidency to organise its websites in a particular manner and that it therefore does not bear any responsibility for these websites. In its opinion on the Ombudsman's proposal for a friendly solution, the Council even argued that the opposite view would reverse a fundamental principle of EU law, namely, that set out in Article 7 (1) of the EC Treaty according to which "[e]ach institution shall act within the limits of the powers conferred upon it by this Treaty."

2.17 The Ombudsman remains unconvinced by this argument. Where a Member State provides a website, in its capacity as the incumbent of the Presidency, it acts as part of the Council. Given that the issue raised in the present complaint thus concerns the relationship between the Council and its Presidency, that is to say, a part of that very same Council, the Ombudsman does not see how the position adopted by him could enter into conflict with the principle enunciated in Article 7 (1) of the EC Treaty. The Ombudsman agrees that it is primarily for the Member State holding the Presidency to decide on the contents it wishes to provide on such a website. However, the Ombudsman is not aware of any rule or principle that could prevent the Council from discussing and agreeing on formal aspects of these internet presentations with a view to making the information thus provided as widely available as possible, for example, by discussing and determining which languages should be used for these websites. Given that Article 203 of the EC Treaty provides for a rotating Presidency (among all the Member States), such formal aspects would not only concern a particular Member State but would be of relevance to all of them.

2.18 In view of the above, the Ombudsman continues to believe that the Council can in principle be held responsible as regards the websites maintained by its Presidency.

2.19 As regards the third of the above-mentioned issues, it should be noted that the Ombudsman has already had occasion to deal with the issue of the choice of languages as regards information published by Community institutions and bodies.

2.20 In his decision of 14 June 2000 in case 939/99/ME(6), the Ombudsman stressed that it is essential that documents directed to persons outside the Community institutions should be available in as many languages as possible. One of the most important means of providing information to the public in modern times is the internet. In the Ombudsman's view, it is therefore particularly important to ensure that the public websites set up by the institutions and bodies of the Community are accessible to citizens in as many languages as possible.

2.21 In its opinion, t he Council argued that the websites of the Presidency do not aim to replace the Council's website, which is available in all Community languages, and register of documents, but seek to complement them. It seems that the Council thus wished to suggest that there was no need to consider the substantive issue raised by the complainant.

2.22 Having visited some of the relevant websites, the Ombudsman considers that the complainant's argument according to which these websites do not only complement the Council's website, but go far beyond the contents of the latter, does not appear to be without merit. The Council itself noted in its opinion that these websites provide practical information on activities unique to each six-month period of the Presidency such as, for instance, informal meetings, cultural events and other Presidency activities and initiatives. Such information is not necessarily available on the Council's own website. However, even if the websites of the Presidency only provided additional information, this information would nevertheless be of interest to the public and should therefore be made available as widely and as well as possible.

In view of the significance of the role played by the Presidency, it would appear all the more important to ensure that the information published on its websites is accessible to as many citizens as possible. It is appropriate to underline once again that the present case does not concern the contents of these websites, that is to say the issue as to what information the Presidency provides, but the presentation of this information, that is to say, the question as to whether the information should be made available in certain languages.

2.23 In his decision of 10 September 2002 in case 1146/2001/IP(7), the Ombudsman expressed the view that, as far as possible, the institutions and bodies of the EU should provide information to citizens in their own languages. The Ombudsman added, however, that he was not aware "of any rule or principle that forbids them to publish information on their websites in less than the full number of official languages". Particularly in view of the fact that the number of official languages in the EU has now increased to 20, there may indeed be legitimate reasons to limit the number of languages in which the websites provided by the Presidency are offered to the public.

2.24 The Ombudsman considers, however, that if the number of languages for the presentation of the Presidency's websites is to be limited, the choice of the languages to be used must be based on objective and reasonable considerations. It should be noted that, in its judgment in Case C-361/01 P Kik v OHIM (which concerned the languages to be used in proceedings before the Office for Harmonisation in the Internal Market), the Court of Justice pointed out that whilst the relevant regulation treated the official languages of the Community differently, the Council's choice "to limit the languages to those which are most widely known in the European Community is appropriate and proportionate."(8) The complainant has submitted what appear to be weighty arguments to establish its view that, after the enlargement of 2004, German has become the second-most widely used language in the EU. In the complainant's view, the Presidency websites should therefore be made available in German as well. In the light of these arguments, the Ombudsman considers that the choice of languages for the websites of the Presidency should indeed be reconsidered.

2.25 The Ombudsman notes, however, that the Council has so far refrained from taking a position on the substance of the complainant's arguments.

2.26 In view of the above, the Ombudsman arrives at the conclusion that the Council's failure to consider the substance of the complainant's request that the websites of the Presidency should also be offered in German constitutes maladministration.

3 Conclusion

In view of the above, the Ombudsman makes the following draft recommendation to the Council, in accordance with Article 3 (6) of the Statute of the Ombudsman:

The draft recommendation

The Council should consider the complainant's request that the internet presentations of the Presidencies should be made available in German as well.

The Council and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Council shall send a detailed opinion by 30 June 2006. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 14 March 2006

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) OJ 2001 L 145, p. 43.

(3) The complainant enclosed a list of these documents.

(4) See Annual Report 1997, p. 22.

(5) See Annual Report 1998, p. 17.

(6) Available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(7) Available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(8) Case C-361/01 P Kik v Office for the Harmonisation of the Internal Market [2003] ECR I-8283, paragraph 94.