Presentation by the European Ombudsman, P. Nikiforos Diamandouros
Erasmus for Public Administration
Strasbourg, 25 October 2011
The work of the European Ombudsman and the European Network of Ombudsmen

Good morning, ladies and gentlemen!

1 Introduction

I am delighted to be here to present my work to you. I would like to thank David Walker from the European Administrative School for inviting me to address you.

I am particularly pleased to be speaking to participants in the Erasmus for Public Administration programme. As a university professor of political science, I can only wholeheartedly support a programme that promotes life-long learning and the sharing of experience among public officials who work in different administrative cultures and legal environments.

As European Ombudsman, I am profoundly aware of how important it is for public officials in the Member States to share information and best practice. We certainly do this among ombudsmen in the European Network of Ombudsmen and I look forward to speaking to you about the activities of this Network.

I will of course describe my own role as European Ombudsman and the types of complaints that I deal with.

I shall explain how my activities as European Ombudsman complement those of the courts, both in reacting to complaints and by being proactive in a number of ways.

I plan to speak for about 35 minutes, so as to allow time for questions and discussion.

During my speech, I will refer to some publications that I think might be of interest to you in your work. These are available at the back of the room.

2 What is an Ombudsman?

Let me start with an overview of the principles underpinning ombudsman institutions generally.

An ombudsman is an independent, external mechanism of control dealing with complaints against public authorities.

In 2009, the ombudsman institution celebrated an important anniversary, namely, 200 years of existence. Sweden established the world’s first ombudsman in 1809, as part of a constitutional settlement that ended a period of absolute monarchy. The new institution was to be independent of Government, supervise the application of the laws by judges and other public officials and prosecute in cases of illegal conduct.

Until the middle of the 20th Century, only one other country, Finland, had established an ombudsman. The Finnish Ombudsman was based on the Swedish model, with power to supervise the courts and to prosecute officials vested in it.

During the second half of the twentieth century, following Denmark’s establishment of the world’s third ombudsman office, the institution spread globally.

In the 1960s and early 1970s, a first wave of global expansion began when older democracies, such as Norway, New Zealand, the UK and France, adopted the ombudsman institution as a way of tackling citizens' problems in dealing with public administrations which expanded greatly and took on new roles, especially after the Second

World War, when the social role of the state grew exponentially.

From the mid-1970s onwards, ombudsmen were established in post-authoritarian states, such as Greece, Portugal and Spain, as well as in many countries of Latin America. After 1989, the transition from communism to democracy in Central and Eastern Europe resulted in a large increase in the number of ombudsman institutions in this region.

In some countries, the ombudsman is seen primarily as a way of making public bureaucracies more responsive to citizens. In others, the main focus is on human rights.

Unlike a court, an ombudsman normally has no power to make legally binding decisions. Its authority is moral and its effectiveness depends on being demonstrably impartial and non-partisan, so as to deserve, and win, the confidence of both complainants and the administration.

This is the rationale for independence, which constitutes an indispensable part of the architecture of the ombudsman institution.

The fact that an ombudsman can only persuade, not compel, makes it possible for the institution to complement the courts in a number of ways.

Specifically, in reacting to complaints, an ombudsman can apply broader review criteria, be more accessible, and use more flexible procedures than a court.

An ombudsman can also be proactive in ways that are not possible for a court.

The courts are, of course, the foundation of the rule of law and ombudsmen are guided by the courts, drawing inspiration from their jurisprudence in formulating their own decisions and principles of good administration.

I will explain these points with specific reference to my own institution, the European Ombudsman.

3 The European Ombudsman

The European Ombudsman was created by the Treaty of Maastricht, which established Union citizenship.

One of the rights of citizens of the Union is to complain to the Ombudsman about maladministration in the activities of the EU Institutions and bodies, with the exception of the Courts when acting in their judicial role.

As I have explained, independence is vital to my credibility as an Ombudsman. In my case, a key institutional guarantee of independence is that I am elected by the European Parliament and address my reports to Parliament.

I conduct inquiries into possible maladministration on the basis of complaints from citizens and residents of the Union, from businesses and other organisations registered in the Union, or on my own initiative.

The complaints that I receive concern nearly the whole range of activities of the Union institutions and bodies, but five subjects tend to recur most frequently.

1 Failure to answer correspondence

Normally, the easiest complaints to resolve are those about failure to answer correspondence. In most cases, my staff succeeds in obtaining an answer promptly from the institution or body and the case is then closed as settled.

If the complainant is not satisfied with the substance of the answer, he or she has the opportunity to come back with a new complaint.

2 Lack of transparency

By far the most common allegation examined by the Ombudsman is lack of transparency in the EU administration (this allegation arose in 37% of inquiries in 2010). This includes the refusal of information or documents.

Let me give you an example: In April 2008, an Irish citizen asked the European Medicines Agency (EMA) for access to documents containing details of all suspected serious adverse reactions relating to an anti-acne medicine. His son had committed suicide and he considered that his son's use of this medicine had led to the suicide.
EMA refused to disclose the documents. In September 2008, the complainant turned to the European Ombudsman, who opened an investigation.

In EMA's opinion, the EU transparency rules, enshrined in Regulation 1049/2001 on access to documents, did not apply to the suspected serious adverse reaction reports. The Agency argued that access to the reports was exclusively regulated by the specific EMA Regulation. According to the Agency, this Regulation gives it wide discretionary powers to refuse the requests for access. Furthermore, EMA stressed that the release of the reports would not benefit citizens because it could result in the circulation of data that could prove to be misleading or unreliable.

Following our investigation, the Ombudsman concluded, however, that the EU rules on access to documents do apply to all documents held by EMA. This does not mean that adverse reaction reports must automatically be accessible, given that certain exceptions contained in the transparency rules might apply.

The Ombudsman found that the Agency had failed to provide valid grounds for its refusal to grant access to the requested reports. This constituted an instance of maladministration. I, therefore, recommended that EMA review its refusal to grant access to the adverse reaction reports.

As regards EMA's concerns about the circulation of data that could prove to be misleading or unreliable, the Ombudsman suggested that, as part of a proactive information policy, EMA could provide additional explanations designed to render such data and their significance more readily understandable by the public.

EMA accepted the Ombudsman's recommendation and agreed to release the documents. It has also adopted a new policy for accessing documents in its possession in a way that enhances transparency. This is of great importance. EMA's work has a direct impact on the health of European citizens. It is vitally important, therefore, that citizens trust EMA and have confidence in its work.

3 The Commission's role in investigating possible unlawful activities

The third category of complaints to the Ombudsman concerns the European Commission’s role as “Guardian of the Treaty”.

Such complaints mainly come from persons who have complained to the Commission about an infringement of EU law by a Member State and who are dissatisfied with the Commission’s handling of the matter.

4 Contracts and grants

Another large category consists of complaints concerning the way contracts and grants are awarded, or the performance of obligations under a contract, or a grant agreement.

Many such cases begin with an allegation of failure to pay.

5 Personnel matters

Finally, there are complaints about personnel matters. This category includes both complaints from existing staff and complaints about the recruitment of new staff.

6 Own-initiative inquiries

The Treaty also empowers me to conduct inquiries on my own initiative, as well as in response to complaints. The own-initiative inquiry is an important proactive instrument.

One of the purposes for which I use such inquiries is to investigate possible systemic maladministration.

For example, at the beginning of February, I closed an own initiative inquiry (which was opened in February 2009) concerning late payment by the European Commission. In my decision I concluded that in light of the clear improvements achieved by the Commission, there were no grounds for further inquires into the issue. However, I pointed out that the matter should be kept under review. In the process of this own initiative inquiry I also launched a public consultation on the issue of delayed payments.

4 The Ombudsman as an alternative to the courts

Let me address now the idea of the Ombudsman as an alternative to the courts. As I mentioned earlier, an ombudsman’s role is to persuade, not to compel.

In the context of the European Union, that makes it possible for me to complement the Courts by providing an alternative way of resolving disputes that has more flexible procedures, is more accessible and applies a broader review criterion.  I will explain these points, beginning with procedures.

4.1 Flexible procedures

Making a complaint to the Ombudsman opens up the possibility of reaching a solution acceptable to both sides.

The institution or body may take the initiative to settle a complaint, sometimes with encouragement from me, as with cases about unanswered correspondence and other cases where I see an opportunity to facilitate a rapid resolution of the problem.

4.2 Accessibility

As regards accessibility of the Ombudsman, there is no financial cost involved in making a complaint and no need to be legally represented.

Furthermore, complaints to the Ombudsman can be made in many situations where it would not be possible to bring an action for annulment before the Court.

4.3 The review criterion: “maladministration”

Let's look now at the Ombudsman's review criterion of "maladministration".

While the Treaty tells me to inquire into “maladministration”, it does not explain what it is.

In 1996, the European Parliament asked for a definition and the Ombudsman offered the following: “maladministration occurs when a public body fails to act in accordance with a rule or principle that is binding on it”.

In practice, three kinds of failure may give rise to a finding of maladministration:

1 failure to respect a legal rule or principle;

2 failure to respect the principle of good administration;

3 failure to respect human or fundamental rights.

To be sure, there is a high degree of overlap between legal rules and principles and the principles of good administration.

However, they are not completely identical, because good administration is based on the idea that the administration exists to serve citizens. An institution in which there is a culture of service to citizens will, of course, respect legal rights, but it will also seek to do more than just avoid illegality.

That implies that, whilst an unlawful act always constitutes an act of maladministration, the converse is not true: there may be maladministration even if the institution or body has not acted unlawfully. As I like to put it, there is “life beyond legality”.

One of the instruments that I use to promote a culture of service in the EU institutions and bodies is the European Code of Good Administrative Behaviour. The European Parliament approved the Code in September 2001 and called on the Ombudsman to use the Code in his inquiries into maladministration.

If you look into the Code, you find legal rights and principles, such as proportionality, the right to be heard, and legitimate expectations.

You also find fairness, reasonableness, helpfulness and courtesy. These are not necessarily legal obligations, as such, but they do form an essential part of a culture of service.

The Code has received wide recognition, in the Member States and candidate countries, in the Council of Europe and elsewhere. A number of ombudsmen in the European Network of Ombudsmen use the Code to help enhance the quality of the administrations that they supervise.

The Code provides a good example of how the ombudsman can be a resource for public sector managers, especially those who are trying to build an organisational culture that emphasises service to citizens and quality of output.

5 Promoting a culture of service

Part of an ombudsman’s function in a modern democracy is to help ensure that the public administration is oriented towards serving citizens and tries to meet their increasingly high expectations -- even if not all those expectations are reflected in legally enforceable obligations.

Within the European Union, different names are given to this aspiration: culture of service, service-mindedness, citizen-friendliness, customer focus, proper administration, or indeed “good administration”. Its scope is a matter of discussion among ombudsmen in Europe, but at least the following would surely gain wide acceptance as core elements:

• Acting fairly and reasonably;
• Acting carefully;
• Acting consistently and in accordance with established policies;
• Taking into account and balancing all the interests involved;
• Avoiding unnecessary delay;
• Being courteous and helpful, as well as sensitive to individual circumstances, needs and preferences;
• Acknowledging errors and taking action to put the matter right;
• Being open and transparent;
• Seeking continuous improvement.

It is entirely possible for such standards to be made legally binding, either through legislation, or through case law.  That, however, is a matter for the legislator and the courts.

It is not obvious, however, that the creation of legal obligations is always the most appropriate way to promote a culture of service, or to provide remedies for all possible types of administrative failures.  However extensive the legal obligations of the administration may be, a culture of service to citizens has to be based on more than merely avoiding illegality.

6 A strategy for the Ombudsman and a new visual identity

Before I talk about the work of the European Network of Ombudsmen, let me say a few words about our strategy for the Ombudsman's 2009-2014 mandate, which was adopted in September 2010.

The strategy seeks to provide a clear statement of the Ombudsman's mission, aspirations and guiding principles. Building on what has been accomplished so far, it outlines a series of objectives and priorities, which are designed to achieve the Ombudsman's overarching aim of, first, ensuring that EU citizens enjoy their rights fully, and, second, enhancing the quality of the EU administration.

The strategy has been developed through an extensive process of consultation with internal and external stakeholders.

By focusing on the objectives we have set ourselves, we are endeavouring to help the Union to deliver on the promises it has made to citizens in the Treaty of Lisbon concerning fundamental rights, enhanced transparency, and greater opportunities for participation in the Union’s policy-making.

In so doing, we also seek to make our own, modest contribution to the lofty goals of deepening of the rule of law and to the enhancement of the quality of democracy in the European legal order. The strategy is available on EO's website in 23 languages.

The adoption of our strategy coincided with the launch of a new visual identity for the institution, including a new logo. The logo is designed to enhance the Ombudsman's efforts to reach out to a wide range of audiences, while evoking the institution's identity and values. The colours are meant to serve as a reminder of the European flag, while the circular shape represents unity and consensus. The arrows and the equals sign within the logo respectively symbolise exchange and dialogue, as well as equality and fairness, key features, that is, of the Ombudsman's approach to citizens and good administration.

Finding ways to reach out to citizens to inform them about their rights and how to make use of those rights has been a key priority for me as European Ombudsman. I am confident that our new visual identity will help us project to all our audiences the image of an institution that is accessible, fair, and citizen-centred.

We also launched, alongside our new visual identity, a new visual identity for the European Network of Ombudsmen.

7 The European Network of Ombudsmen

Let me talk now about the work of the Network. I will start with a few words on a fundamental principle of governance in the EU, namely, subsidiarity, since it is highly relevant to this discussion.

Subsidiarity has many aspects and I do not need to mention them all. The first aspect that is relevant for present purposes is that - as you know - 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-- 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.

My mandate as European Ombudsman is limited to the institutions, bodies, offices and agencies 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, in fact, 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.

Citizens and residents of the EU can turn to the appropriate national or regional ombudsman to complain against public authorities in the Member States about matters falling within the scope of EU law. Following the global spread of the institution which I described earlier, 25 out of the 27 EU Member States have ombudsmen at the national level. In Germany, the ombudsman function at the federal level is performed by the Committee on Petitions of the Bundestag, while in Italy there are ombudsmen only at the regional and local levels. Regional ombudsmen also exist in Austria, Belgium, Germany, Spain and the UK.

We work together in the European Network of Ombudsmen, which now consists of over 90 offices in 32 countries. The Network includes the national and regional ombudsmen and similar bodies of the Member States of the European Union, the candidate countries for EU membership, and certain other European countries, as well as the European Ombudsman and the Committee on Petitions of the European Parliament"

One of the most important shared objectives of the Network 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.

In January 2009, I launched an interactive guide on my website, which is accessible in all 23 EU languages. This aims to direct complainants to the body best placed to help them with their problem, be it my own services, or, for example, the services of national or regional ombudsmen in the Member States. The guide has provided advice to over 60000 users.

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 those complaints which fall outside my mandate to the competent ombudsmen, or inform the complainant whom to address.

The European Network of Ombudsmen makes it possible to transfer cases between its members, or to give rapid and accurate advice to complainants as to which member of the Network is competent to help them.

To help make the EU dimension of ombudsmen’s work better known and to clarify the service that they provide to people who complain about matters within the scope of EU law, members of the Network adopted a Statement at the Sixth Seminar of National Ombudsmen, held in Strasbourg in October 2007. The Statement is available on the European Ombudsman's website in 23 languages.

It explains that the national and regional ombudsmen in the Network are independent and impartial persons, established by constitution or law, who deal with complaints against public authorities. They take into account the relevant provisions of EU law, including general principles of law such as respect for fundamental rights.

It is important to emphasise that ombudsmen in the Member States have legal obligations with regard to EU law.  In particular, within their field of competence, ombudsmen in the Member States must apply EU law correctly and disregard any national rules which prevent them from protecting the rights that individuals derive from EU law.

This point was made at the Fifth Seminar of national ombudsmen in The Hague in 2005 by then Advocate General Maduro. In his remarks, Advocate General Maduro confirmed that ombudsmen are particularly well placed to examine whether EU law has been applied correctly by public administrations in the Member States and to confront authorities where failures have occurred. A national ombudsman has the necessary authority to encourage the public administration to disregard domestic rules that are incompatible with EU law and to give full effect to EU law provisions.

Going back to the point I made earlier about the ombudsman complementing the courts, the Advocate General confirmed this with regard to the European Network of Ombudsmen, stating that ombudsmen have a comparative advantage over courts in two respects. Firstly, in the area of free movement, judicial redress is often not effective, because of the expense and the length of time involved. Individuals confronted with a serious obstacle to the exercise of their freedom of movement, such as lack of recognition of a diploma, for example, cannot afford to wait several years for a judicial remedy. Secondly, ombudsmen can perform a key role in "educating" public authorities about their obligations regarding the implementation of EU law.

To fulfil these obligations, ombudsmen in the Member States must of course be aware of, and familiar with, EU law. The European Network of Ombudsmen serves as an effective mechanism for sharing information about EU law, as well as for exchanging experiences and best practice.

For example, we publish a bi-annual Newsletter. This is addressed to over 400 offices at the European, national, regional, and local levels. A common theme running through many of the articles is the role of ombudsmen in ensuring that EU law is fully implemented. Recent issues have covered questions of free movement, discrimination, environmental law, public procurement issues, access to information and fundamental rights.

National and regional ombudsmen in the Network may ask the European Ombudsman for written answers to queries about EU law and its interpretation, including queries that arise in their handling of specific cases. The European Ombudsman either provides the answer directly or, if more appropriate, channels the query to another EU institution or body for response.

We also have an Internet discussion and document-sharing forum for ombudsmen and their staff in Europe. The discussion forum provides a very useful way for ombudsman offices to share information through the posting of questions and answers. Several major discussions have been initiated in this way. They covered issues such as freedom of assembly, police oversight mechanisms, disclosure of medical data, access to healthcare for asylum seekers, and access to employment within the public sector.

The Network equally ensures that examples of best practice are shared not only among national and regional ombudsmen in the Member States, but also flow from the Member States to the EU level. For example, in 2008 I conducted a comparative study among my colleagues in the Network into best practice in the Member States relating to public access to information contained in databases. I drew inspiration from the results of this study to formulate concrete proposals relating to the ongoing reform of the EU's rules on public access to documents.

My ombudsman colleagues in the Network have been willing to help the European Ombudsman in the drafting of an ethical code that would apply to EU officials and institutions. I asked colleagues for their help in ensuring that the code takes full account of best practice in the Member States. A number of colleagues sent me information on national codes of ethical standards in public life and thus helped me shape the draft statement of public service principles, on which I launched a public consultation in February of this year. Last week, a revised draft of the code was discussed at the seminar of national ombudsmen which took place in Denmark.

8 Conclusion

I hope that these remarks have given you a good insight into the work of an ombudsman, and in particular, the European Ombudsman and his colleagues in the European Network of Ombudsmen.

Good administration provides space for the Ombudsman institution to play a role that is separate from, and complementary to, that of the courts in contributing to an evolving European legal order based on rule of law and democracy.

We have an important role to play in ensuring that EU law is implemented and that citizens can enjoy their rights. In addition to acting as an external mechanism of control, the ombudsman performs an important function as a resource, helping the public administration to improve its performance and playing an educative role.

I look forward to discussing these issues with you now.