Good morning everyone,

My thanks to the students, alumni and faculty of the Department of Law and Administration for the invitation to speak to you today on the topic of the European Ombudsman in a geopolitical age: protecting fundamental rights and accountability.

Warsaw is a most appropriate venue for a meditation on geopolitical thinking given that Poland is at the epicentre of the geopolitical earthquake unleashed by Putin’s invasion of Ukraine last year and as so many decisions that you are now making for yourselves are necessarily informed by geopolitics.

Before I speak on the core of today’s topic I want to explain a few things about my role. The first is that I act completely independently. I am elected by the European Parliament with no involvement either from the Member States or the Commission.

I first went forward for election in 2013 on the basis of my ten years as Ireland’s independent Ombudsman and Freedom of Information Commissioner and have never been a member or public supporter of any political party or grouping.

The European Treaties and the Charter of Fundamental Rights provide for the right of EU citizens to good administration and the European Ombudsman is charged with enabling that right and the broader principles of good administration.

I deal with individual complaints against the EU administration from citizens, business organisations, media, civil society and even occasionally from parliamentarians.

My mandate covers the entire EU administration apart from the European Parliament in its political role and the European Court of Justice in its judicial role. In other words, I don’t inquire into the political actions of MEPs or the rulings of the Court.

The range of complaints I do deal with is nonetheless vast, from access to document requests, EU law infringement issues, the transparency of clinical trials on medicines, conflict of interest cases involving EU officials, disputes over the awarding of EU grants, tenders and contracts, the transparency of trade deals between the EU and other countries, revolving door cases when EU officials move from the public to the private sector, alleged failures to comply with the Charter of Fundamental Rights, and disputes involving staff of the EU administration, among many more.

I have the right to inspect whatever document is necessary to deal with a case and I also use my power of own initiative to inquire into systemic problems in the EU administration, even if I have not received a direct complaint about them.

Just last week I laid a Special Report before the European Parliament following an investigation into European Commission delays in dealing with access to documents cases and particularly in cases of high public interest.

Recent examples show that it took the Commission over a year to deal with requests concerning documents relating to migration, to EU recovery funds, and to sanctions against Russia. My concern is that these delays undermine citizens’ ability to scrutinise EU decisions and policies in a direct and timely way.

My decisions are not binding, but in the vast majority of cases, they are accepted either fully, partially, or, eventually.

My primary reason for coming to Warsaw at this time is to visit the headquarters of the European Border and Coastguard Agency, Frontex, and discuss with the executive director and his team the issues that are raised by citizens and others about that agency.  

We receive many public access request cases concerning Frontex when the agency has refused to release certain documents, in addition to complaints concerning its fundamental rights role.

We have also conducted a number of own initiative investigations into Frontex and we are currently inquiring into its role in search and rescue, including in connection to the tragic drowning of hundreds of migrants when their boat sank in Greek waters last June. As that inquiry is ongoing and as we await Frontex’s replies, I am not in a position to say too much about it at this stage.

So when you look at the issues I deal with – document access cases in relation to Russian sanctions for example or in relation to international trade deals or, on an own initiative basis, our inquiry into conflict of interest checks on those involved in evaluating project proposals for the European Defence Fund – one can see how the EU’s geopolitical thinking and actions necessarily impacts on our work.

The challenge for my Office – or indeed for any Ombudsman or independent oversight office – is in decoupling and disentangling the ‘politics’ – which is none of our business – from the ‘administration’ which is, and which encompasses the fundamental values that should guide good government – trust, transparency and fundamental rights.

So in this address, I want to explore two main issues. One concerns the European Commission’s positioning and description of itself in the midst of significant global disruption, change, and challenge, that is its evolution from a simple ‘Commission’ under former Commission President Barroso just ten years ago, to becoming a self-styled ‘very political Commission’ under former President Juncker, before morphing into the ‘geopolitical Commission’ as current President von der Leyen has described the present Commission since 2019.

The second issue is migration – a subject reaching yet another peak of political concern in the last few weeks – and specifically how the EU balances those political challenges with its obligations under the Treaties and the Charter of Fundamental Rights. It is an issue that encapsulates the nature of the tensions inherent in geopolitics.

My Office cannot concern itself with the politics but we also cannot  not concern ourselves with the fundamental rights issues that arise, and which do not disappear from EU law once the geopolitical tension rises  vis-a-vis migration and other issues with an external dimension.

In preparing for my visit to Warsaw I remembered the first time I came here, in April 2014, just weeks after Russia had invaded and subsequently annexed the Crimean Peninsula in Ukraine. I recall being struck by how many Polish people told me of their concerns about Russian aggression more generally. They voiced their fears with a rhetoric that at that time did not find a strong echo in Brussels.

In July of that same year, in a speech delivered to the European Parliament by the then candidate for the European Commission Presidency – Jean-Claude Juncker – Russia was not explicitly mentioned at all while Ukraine received just two – very brief – mentions.

The following year, in his first State of the European Union address, Commission President Juncker did speak of EU sanctions against Russia, warned about the inviolability of EU borders and recalled the then recent G20 summit in Brisbane when he had had a lengthy conversation with Russian President Putin, recalling, said Juncker, ‘how long they had known each other but how different times had become’.

Juncker’s 2015 speech was however primarily focused not on Russia but on the migration crisis which was then reaching a peak. In words that would not find quite the same echo in the Brussels of 2023, Juncker said:

“This is first of all a matter of humanity and of human dignity. And for Europe it is also a matter of historical fairness.”

“Our common history is marked by millions of Europeans fleeing from religious or political persecution, from war, dictatorship, or oppression.”

“Huguenots fleeing from France in the 17^th century.”

“Jews, Sinti, Roma and many others fleeing from Germany during the Nazi horror of the 1930s and 1940s.”

“Spanish republicans fleeing to refugee camps in southern France at the end of the 1930s after their defeat in the Civil War.”

“Hungarian revolutionaries fleeing to Austria after their uprising against communist rule was oppressed by Soviet tanks in 1956.”

“Czech and Slovak citizens seeking exile in other European countries after the oppression of the Prague Spring in 1968.”

“Have we forgotten”, he added, “that 20 million people of Polish ancestry live outside Poland, as a result of political and economic emigration after the many border shifts, forced expulsions and resettlements during Poland’s often painful history?”

“We Europeans should know and should never forget why giving refuge and complying with the fundamental right to asylum is so important.”

And he concluded:

“We can build walls we can build fences. But imagine for a second if it were you, your child in your arms, the world you knew torn apart around you. There is no price you would not pay, there is no wall you would not climb, no sea you would not sail, no border you would not cross if it is war or the barbarism of the so-called Islamic State that you are fleeing.”

Let’s now move to the present day, almost a decade since the invasion of Crimea and the last peak of the migrant crisis. 

Three main events, the 2016 election of Donald Trump as US President, the COVID pandemic of 2020 and Russia’s war on Ukraine in 2022, became instrumental in shifting the EU focus in a more explicitly geopolitical direction and most noticeably in the shift from ‘Commission’ to ‘geopolitical Commission’.

The increasing trade and technological global power of China has also played a major role.

The shift wasn’t entirely new but the very deliberate naming of that shift – the very explicit signalling of the EU’s intent concerning its global interactions, was.

The European Commission has always floated, as Juncker’s former chef de cabinet Martin Selmayr has said, ‘between different poles of nature. Sometimes - and that depends a lot on the historical circumstances - it goes more toward its technocratic pole, and sometimes it moves towards its political pole’.

The ‘historical circumstances’ of recent years have clearly shifted the Commission towards its political pole. The current Commission President Ursula von der Leyen describes her Commission as ‘geopolitical’ and organises its work with a view to the strategic instrumentalisation of EU soft and hard power globally in order to achieve what the Commission calls ‘strategic autonomy’.

The aim is to protect the EU to the greatest extent possible from the fallout of shifting global alliances and global trade competition, particularly in the arena of new technologies. The move towards greater EU defence autonomy has also been accelerated by the war.

This shift was visible across every page of her State of the European Union address to Parliament two weeks ago. From Chinese trade wars to Russian aggression, to Europe’s defence and technological capacities, the geopolitical overlay was there.

On migration, there was no trace of Juncker’s emotive and emotional plea for human understanding of some years ago. Rather, the issue was couched in a few brief paragraphs as primarily one of people smuggling and human trafficking.

Political priorities and with them, political rhetoric, had changed.

The challenge this posed for my office, as European Ombudsman, had also come into sharper focus.

Ombudsmen do not, as I said earlier, typically stray into the arena of politics but when a body such as the Commission, moves more towards its political pole, how does an Ombudsman navigate that intersection?

As European Ombudsman, my office, naturally, pays great attention to what the Commission does as the vast majority of complaints we receive are against that institution, and for obvious reasons given its role and its large interface with citizens.

Accountability is relatively straightforward when one is dealing with matters that the Commission itself largely administers – issues around grants, contracts, infringement proceedings, access to documents, among others – but when it comes to matters involving many different actors inside and outside the EU, like migration deals with third countries, the distribution of the Recovery and Resilience Funds to member states, decision making concerning defence procurement, or the purchase of COVID vaccines,  matters become slightly more challenging.

The recent agreement that the EU concluded with Tunisia is a good example of how a speedy response to an urgent political challenge can complicate the business of holding the institutions to account.

Jointly announced in Tunis by the Commission President and Tunisian President Saied and in the company of two prime ministers – Italy’s Georgia Meloni and the Netherlands’ Mark Rutte – the deal included commitments from the Tunisian government to stem the flow of migrants from its coast to European destinations across the Mediterranean.

In return, Tunisia will receive funding from the Commission to help manage these migration flows, as well as funding from the Commission and member states to stabilise its struggling economy, to create new energy partnerships and much else.

Described as an achievement of ‘Team Europe’ in press releases and public statements, questions were quickly asked by some MEPs as to what Team Europe was exactly and to whom it was accountable.

Some EU foreign affairs ministers also expressed their concerns in writing to the Commission about the lack of formal consultation.

Questions then emerged about the fundamental rights elements of the deal and whether they had been fully explored in advance. As I have already noted, the politics of the deal are not my concern but I have opened an inquiry into the measures that the Commission has taken, or will take, in order to ensure that the fundamental rights of migrants transiting through the Tunisian border will not be undermined as a result of this deal.

The primary mandate of the European Ombudsman is to identify and remedy maladministration in the European institutions, bodies and agencies. Good administration encompasses observance of, and respect for, fundamental rights and where fundamental rights are not respected, there cannot be good administration.

This is a point I have emphasised in many other similar inquiries, including into the role of fundamental rights in international trade agreements and in the migration deal between the EU and Turkey in 2016. In relation to that deal, I concluded that there should be a prior and explicit evaluation of the human rights impact of relevant policies and actions, ideally before these actions start and policies are adopted, for obvious reasons.

My current inquiry will look into whether these considerations have been reflected in the thinking that shaped the Tunisia deal.

The Turkey and Tunisia agreements do share some common elements. Most obviously, they both respond to the perception that irregular migration is now out of control. They also both involve deals with countries with poor human rights records.

But they also speak to the idea that some events require a rapid political intervention or resolution that justifies or even requires the abandonment of normal decision-making processes, and the full measure of accountability that comes with that.

This idea has been explored in depth in the work of Luuk van Middelaar, the political scientist and former adviser to a former President of the European Council. Middelaar distinguishes between the ‘politics of rules’ and the ‘politics of events’.

The politics of rules is the core business of the “Brussels rule-making factory”, as he calls it, a mechanism that produces consensus and results, and where officials are charged with the implementation of the rules. That is their domain.

The politics of events, by contrast, requires politicians who can improvise, who can get public opinion on their side, who display “initiative, courage and incisiveness at just the right moment”.

For him, this kind of politics is exemplified by the actions of an Angela Merkel or a Mario Draghi in the depths of the euro crisis, or a Nicolas Sarkozy in negotiating a ceasefire between Georgia and Russia in 2008. They are virtues, he implies, that are too rarely on display on the European stage and that the quality of the EU and its politics is diminished as a result.

And he is right that there are indeed times when, confronted with unprecedented events, citizens demand and expect political leadership to deal with them. The Ukraine war and the Covid-19 pandemic provide good examples of politicians at European level, who after a few missteps, rose to the moment in the way that Middelaar urges.

But where is the line to be drawn between the politics of rules and the politics of events? Improvisation on the geopolitical stage is an inherent necessary element of that interaction but we need to be aware also of its potential dangers and in particular for the quality of government.

Firstly, by leaving behind the constraints of rules and process, there is a risk that we also abandon moral or ethical constraints. What matters is getting the desired result and to be seen to be getting the desired result, quickly and decisively.

Viewed through this lens, geopolitics risks the deprioritising of values. As I concluded in my decision on the EU-Turkey deal, the human rights elements should not be viewed as an optional addition to political deal-making.

A human rights impact assessment, after all, is not simply a box to be ticked as part of routine decision-making. Done properly, it is a tool that allows for a measured and thoughtful analysis of risks posed to the fundamental rights of everyone affected by a policy and what might be done to mitigate them.

If we think of the confrontation between democracies and autocracies as the defining fault-line of our geopolitical age – as President von der Leyen indicated in her State of the Union address last year – such an assessment should be at the core of all our foreign policy initiatives.  

Nearly forty years ago, a famous alumnus of this university, the philosopher Leszlek Kolakowski, warned against this impulse in a lecture entitled ‘The Idolatory of Politics’.

A prominent critic of the communist regime, he was writing at a time when the fall of the Berlin wall was unimaginable and when fundamental rights were considered part of a dangerous ideology.  He wrote, “I believe it important to keep in mind that personal rights set limits on democratic principles rather than being their natural consequence. And personal rights ...have to be vindicated on moral grounds, much as their implementation depends on political conditions. In a world where everything has become politicised it does matter to repeat the time-honoured truism that political goals have to be assessed in terms which are not political.”

Secondly, in the arena of geopolitics, there is a risk that we mirror the mindsets of our perceived adversaries, who may be considerably less attached to fundamental values and personal rights. This engagement can condition our political responses in ways that steer us away – unnecessarily – from our own fundamental values.

Throughout my mandate as Ombudsman, I have noticed that change in our political sensitivities, for example in the contrast in the EU’s response to two mass drownings in the Mediterranean that took place exactly ten years apart.

In 2013, following the deaths of more than 360 migrants off the island of Lampedusa in Italy, the then Commission President Barroso and Home Affairs Commissioner Cecilia Malmstrom joined Prime Minister Letta of Italy to witness the terrible scenes in the aftermath of the shipwreck and to meet with survivors at the reception centres.

In a press conference given at the end of his visit, Barroso said: “I really appreciate the fact that I was coming here, because one thing is to read the reports, another thing is to watch the television, and another thing is to be in loco, experiencing the suffering and indignation of people. That image of hundreds of coffins will never get out of my mind. It is something I think one cannot forget. I also saw the desperate eyes in many survivors... I saw in some of them some hope, also some hope, and I believe now we have to give reason for that hope. To show that that hope in the middle of this suffering can be justified.”

Contrast these sentiments to the response in the aftermath of the shipwreck of the Adriana in June this year off the coast of Greece, with the loss of over 500 lives. Despite the international outrage, the incident received a much more muted response at European level.

President von der Leyen made her own journey to Lampedusa this month – responding to a request from Italian Prime Minister Meloni – to see for herself the large numbers of migrants who had recently made their way to its shores, all unharmed apart from one new born child who died shortly after birth as her mother made her way in a small boat across the Mediterranean.

The primary message this time was not one of deep concern for those who had found sanctuary on the island – although of course their plight was recognised – but rather a renewed commitment to deal with migrant smuggling and to re-emphasise the importance the Commission placed on the Tunisia agreement.

Last July, as I mentioned earlier, my office also opened an inquiry into the role and responsibilities of Frontex when it comes to dealing with these matters. It is important, in the face of terrible human suffering, that institutions at all levels, national and European, reflect on their responsibilities and act accordingly.

At the very least, it is important to be honest about the challenges and the implications – whether negative or positive – of proposed solutions. It is neither right nor wise to hide from public gaze the potential outcome of what they, the public, are implicitly being asked to endorse.

The emphasis on geopolitical antagonisms also risks making us fearful and anxious, constantly looking for the next threat and, given the actualised threats of the last few years, those fears are understandable. But where is the line between rational fear and fear deliberately created?

Kolakowski, in an essay entitled “The Death of Gods” wrote about the myths propagated by the powerful to keep hold of power. The first is the myth of the fortress under siege. “In the besieged fortress”, he writes “there is only one goal: to withstand the siege. And whatever furthers this goal is a good thing. In the besieged fortress, every dispute, every conflict, is catastrophic, every sign of weakness a triumph for the enemy. The sense of being under siege...requires the besieged to perceive the whole visible world outside the fortress as the enemy,  preventing them from swelling their ranks and so strengthening their forces, and cutting them off from all values and possibilities that lie outside.”

We see elements of this at certain levels of decision making in the European Union. It is there perhaps in the emphasis on hard infrastructure and surveillance equipment provided to member states, and to Frontex, in the name of securing our borders and building – in effect – Fortress Europe.

 It was there, briefly, in 2019, when it was proposed to give one EU Commissioner the title Commissioner for Protecting the European Way of Life. Following criticism, this was changed to Promoting the European Way of Life.

The final and perhaps most important challenge inherent in this geopolitical framing is the temptation to make crisis decision making the new normal. The Tunisian agreement is once again a good illustration.

If that template remains, it means in effect that the externalisation of the EU’s border management has become settled migration policy, business as usual as opposed to one off crisis management.

It’s also worth noting that the use of the emergency decision-making powers that the Commission and the EU Council have acquired also feeds into the conversation around rapid geopolitical decision-making and accountability.

In recent years we have seen significant use of the ‘crisis article’ in the EU treaty (Article 122 TFEU) which allows the EU Council – at the request of the Commission – to act through qualified majority in cases of ‘severe difficulties caused by natural disasters or exceptional occurrences beyond its control’. The European Parliament is simply informed of the measures proposed,

Rarely used since the Treaty of Lisbon came into effect, it has been employed several times since 2020 as (part of) the legal basis for EU support for short-term work programmes (SURE), its post-pandemic recovery fund, the joint vaccine procurement, joint gas purchases and for an EU regulation on an emergency intervention to address high energy prices by imposing windfall taxes on energy companies.

While these initiatives were welcome given the potential suffering that citizens may have experienced in their absence, all were also approved in lightning-fast procedures, by-passing the European Parliament, while receiving limited scrutiny from national parliaments. 

Nonetheless, one of the ways in which accountability can be achieved by citizens – even in these circumstances – is through the EU’s access to documents regulation which takes a generally liberal approach to transparency – in line with the EU Treaties – while also allowing for a few mandatory exemptions for certain classes of documents.

One of those exemptions concerns ’the need to protect the public interest as regards international relations’ but in recent times my office has seen on many occasions how this exemption has been, in our view, misapplied to requests for documents, ranging from negotiations on energy policy with the US, to EU sanctions imposed on Russia, to the transfer of citizens’ data outside the borders of the EU.  

Common to these cases is the assumption that the mere fact that these processes involve third-country governments is enough to justify invoking the exemption, regardless of the likely impact on EU citizens.

The number of inquiries opened by my office into the use of the exemption concerning international relations has grown considerably in recent years, from one case in 2016 to eleven last year.

It is obvious that the range of activity of the geopolitical Commission is likely to increase in the years to come, as the external dimensions of our climate, digital, and industrial policies become even more challenging, alongside the impact of possible enlargement and the war in Ukraine.

My concern is that as more and more of the core business of the Commission and other institutions becomes internationalised, the more it may move beyond the full reach of the accountability measures embedded in ordinary rules and procedures, and of watchdog institutions such as the Ombudsman.

Exemptions for emergency measures and the demands of international relations may become increasingly normalised in order to be more politically agile in a fast-moving global order.

That at least allows us to more clearly evaluate the role of the European Ombudsman in a geopolitical age. As a soft power institution within the EU ecosystem, we cannot resolve or settle any of those tensions I referred to earlier, the tensions between the Commission’s political or geopolitical and technocratic poles, between politics as rules and politics as events.

These tensions will always be present in any system of governance at any level.

Our role is rather – through our complaints and investigations – to guard and warn against the abuses and excesses of the system, and to remedy them when we can.

When it comes to the kind of decision making inspired by geopolitical thinking, our role must be to remind the institutions that the values of trust, transparency, accountability and fundamental rights are the pole stars that should light the way.

While there is a role for decisive, and even disruptive, political action, it must lead back as quickly as possible to the arena of public discussion, public scrutiny and public accountability.

This is a task that we cannot perform alone, but only with like-minded institutions and citizens across the continent. Our task as Europeans should be to recover that ethical posture, that soft power that allows us to project ourselves confidently on a global stage, rather than defensively.

It means paying attention to that small still voice that reminds us of our fundamental interdependence and of our obligations to others. That is the origin of those values, articulated in Article 2 of the EU Treaty, that represent the better angels of our nature. This is the Europe that has inspired and been admired by people and by movements all over the world. That is a Europe and a geopolitics worth fighting for.