Note prepared for Mme ALMEIDA GARRETT concerning the possible revision of Article 3 (2) of the Statute of the Ombudsman.

1 Introduction

Article 3 (2) of the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties ("the Statute of the Ombudsman")(1) governs the Ombudsman's right to inspect files and to take evidence from witnesses during inquiries into possible instances of maladministration in the activities of Community institutions or bodies.
According to Article 3 (2), the Ombudsman's inquiries are subject to the following limitations:

(i) a Community institution or body may refuse to allow the Ombudsman to inspect a file on "duly substantiated grounds of secrecy".

(ii) officials and other servants of Community institutions and bodies "shall speak on behalf of and in accordance with instructions from their administrations and shall continue to be bound by their duty of professional secrecy".

In his Annual Report for 1998, the Ombudsman expressed the view that the above-mentioned limitations are unnecessary and inappropriate as a matter of principle. The whole idea of an Ombudsman inquiry is that the citizens can expect that all relevant facts and documents are available to the Ombudsman, even when the information cannot be fully released to the public because it is confidential.
In its Resolution on the annual report on the activities of the European Ombudsman in 1998(2), the European Parliament urged the former Committee on Institutional Affairs to consider amending Article 3 (2) of the Statute.
On 13 December 1999, the European Ombudsman wrote to the President of the European Parliament proposing a possible revised text of the above-mentioned Article, in order to advance the process of giving effect to the expressed will of the European Parliament on the matter.

2 Hearing of witnesses

The limitations laid down on the hearing of witnesses are unacceptable in principle. If understood literally, they could even oblige a witness to lie (for example to cover up a fraud case) if instructed to do so by superiors in the administration.
To make a reliable inquiry possible, witnesses should only be required to speak the truth and present all relevant facts during an inquiry.
Experience since the annual report 1998 was prepared has confirmed that the existing limitations constitute an obstacle to the Ombudsman's inquiries. Further details are given in section 4 below.

3 Inspection of files

3.1 Scope of the proposed revision

Article 3 (2) of the Statute makes special provision in relation to the Ombudsman's power of inspection as regards documents "originating in a Member State". The operation of this provision has not given rise to any difficulties and no change is proposed to the relevant part of Article 3 (2).

3.2 Protection of confidentiality when the Ombudsman inspects a file

The Ombudsman and his staff have the same duty in relation to confidential documents as the Community institution or body concerned: see Article 4 of the Statute.
Inspection of the file by the Ombudsman does not, therefore, result in either the complainant or the public obtaining access to confidential documents.

3.3 Comparison with national ombudsmen and similar bodies

At the suggestion of the rapporteur of the Committee on Constitutional Affairs, the European Ombudsman requested information from national ombudsmen and similar bodies in the European Union concerning the right to inspect files during their inquiries.
The results of the survey confirm that the normal principle is for an Ombudsman to have the right to examine all documents which he considers necessary for his inquiries. In cases where there are exceptions, these are normally much more limited in scope than the vague and undefined notion of "duly substantiated grounds of secrecy".
European citizens should be able to have confidence that the Community institutions and bodies are subject to scrutiny and control which is as effective as that which applies to national administrations. To achieve this, the existing limitation on the European Ombudsman's power to inspect files should be removed.
At the European level, it should be noted that the European Anti-fraud Office (OLAF) has the right of immediate and unannounced access to any information and the right to copy any document held by the institutions and bodies(3).

4 Developments since the Annual Report 1998

Since the Annual Report 1998 was prepared, problems have arisen in practice in four cases. In three of the cases, which are now closed, the Commission finally agreed to allow the Ombudsman to inspect the files in question, but only after considerable delay (365/97/JMA; 531 and 535/97/PD; 1140/97/IJH).
In the fourth case, the Ombudsman's inquiry is on-going. The problems in this case are described below.

4.1 Hearing of witnesses

The Ombudsman has taken testimony from five Commission officials in an on-going case. It is evident from the transcripts that the testimonies have been given "on behalf of and in accordance with instructions from their administrations". Although the Ombudsman considers that the witnesses have been as helpful as they can under the present legal framework, he cannot assure the European Parliament and European citizens that the testimony given has been directed solely towards uncovering the truth.
The Commission refused the Ombudsman's request that a Commissioner should give evidence, on the grounds that Article 3 (2) of the Statute does nor foresee the giving of testimony by members of the institution. It seems, however, that it will be possible to complete the inquiry satisfactorily without this testimony since the Ombudsman has subsequently been able to clarify the point at issue without taking formal testimony.

4.2 Inspection of the file

The Commission refused to allow the Ombudsman to inspect part of the file in the case on the grounds that the documents in question emanate from a company and are covered by commercial confidentiality.
When the Ombudsman queried this refusal the Commission accepted that the Ombudsman could inspect the documents in question. However, it insisted that the Ombudsman must agree to indemnify the Commission against liability arising from any disclosure of the documents.
The Ombudsman refused to sign any such indemnity, both as a matter of principle and because the proposed indemnity appeared to relate to disclosure by anyone, including Commission staff.
Following inspection of other parts of the file, the Ombudsman considers that his inquiry can probably be completed satisfactorily without examining the documents in question.

Concluding remarks

During the first five years of operation, the European Ombudsman has inspected the files during the investigation of a complaint in about 20 cases. In dealing with the European Parliament and the Council, no difficulties have occurred.
As regards inspection of Commission documents lengthy and time consuming discussion has taken place in some cases concerning staff matters and complaints about the Art 226 procedure. Apart from the examples given above, access has been granted when the Ombudsman has informed about the possibility to make a report to the European Parliament about a possible refusal. In all cases the inspection of the file has been useful and in some cases it has revealed that no maladministration has taken place.
During this period there has never been any suggestion that any documents have leaked through the inspection procedure involving the Ombudsman's Office. Furthermore, I have never heard any such allegations against an ombudsman office on the national level either.
It is also a matter of principle that an ombudsman should have access to documents needed for carrying out investigations into maladministration without any obstacles or arguments. This is also a guarantee to obtain the trust of the citizens for the Ombudsman's actions. They understand that there might be documents to which they are not allowed access, but it is reassuring for them to know that the Ombudsman has unrestricted access to obtain accurate information as to what has occurred in their case.
If adopted, the proposed amendments in the Ombudsman statute will furnish the European Ombudsman Office with the same right to access to documents as the Ombudsman offices usually have in the Member States and would thus strengthen the possibilities to serve the European citizens and institutions with the highest standards.

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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 4.5.94, L 113/15.

(2) Resolution on the annual report on the activities of the European Ombudsman in 1998 (C4-0138/99) 1999 OJ C 219/456; Report of the Committee on Petitions on the Annual Report of the activities of the European Ombudsman in 1998 (A4-0119/99) Rapporteur: Laura De Esteban Martin.

(3) See Article 4 of Regulation 1073/1999, 1999 OJ L 136/1.