# Speech of the European Ombudsman -The Citizen, the Administration and Community law
- Author: European Ombudsman
- Date: 1998-06-06T00:00+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/speech/en/292)
---
(Greetings)

Citizenship of the Union was established by the Treaty of
Maastricht. The Union citizenship does not replace, but complements,
national citizenship.

The Amsterdam Treaty contributes to further development of Union
citizenship with a restatement of the constitutional principles on
which the Union is founded. Article A of the Union Treaty, as amended,
refers to:
:   *an ever closer union among the peoples of Europe in which
    decisions are taken as openly as possible and as closely as possible
    to the citizen.*

And as Sweden's minister of Justice Laila FREIVALDS reminded us in
the opening session of this Congress, Article F states that:
:   *the Union is founded on the principles of liberty, democracy,
    respect for human rights and fundamental freedoms and the rule of
    law...*

The working sessions on the theme of **"the Citizen, the
Administration and Community law"** were expertly chaired by Ms
Elizabeth PALM, President of the Administrative Court of Appeal of
Gothenburg and Dr Hans RAGNEMALM, judge at the Court of Justice of the
European Communities. I would also like to thank all the national
rapporteurs and the Community rapporteur Mr GARZÓN CLARIANA for
their excellent reports.

The working sessions examined how to bring alive the idea of
citizenship through more accountable, more open, more human and more
service-minded administration of Community law at all levels in the
Union.

Naturally we took full account of the fact that the administration
of Community law is partly direct - carried out by Community
institutions and bodies - and partly indirect - carried out by the
administrative authorities in the Member States.

Each of the four working sessions was devoted to a specific topic.
:   The first topic was standards of good administration at the
    Community level.
:   The second topic was the role of the Commission as the "guardian
    of the Treaty". In particular, we examined the administrative
    procedures which the Commission uses to deal with complaints from
    citizens about infringements of Community law by Member States.
:   In the third working session, we considered citizens' access to
    documents held by Community institutions and bodies.
:   In the final working session, we examined the judicial and
    non-judicial remedies which citizens can use to protect their
    rights.

I will report separately on the debates in each the four working
sessions.

<br />

1 Standards of good administration at the Community level.

<br />

In the first working session, two principles concerning standards of
administration were generally agreed. The first is that all public
authorities must be subject to the rule of law: it can never be good
administration to fail to act in accordance with the law. The second
is that the administration exists to serve citizens and not vice
versa: administration should therefore be service-minded.

There was also general agreement that a Code of Good Administrative
Practice could play a valuable role in raising the quality of
administration, by making both citizens and officials aware of the
level of service that should be provided.

<br />

The general report drew attention to the Commission's intention to
adopt a Code of good administrative behaviour, to govern the conduct
of its officials. Some participants in the working session felt that
it was undesirable for an institution to adopt such rules itself. They
considered that the European Ombudsman should be responsible for
developing a Code. However, for the Commission itself to adopt a Code,
rather than having it imposed from outside, would underline its
commitment to service-minded administration.

<br />

It was generally agreed that the provisions of a Code would become
legally binding, whether it was adopted as "hard" or soft"
law. Some people feared that "hard" law would be less open
to progressive development of new and enhanced standards. However,
citizens' wishes for clear and enforceable rights would best be met if
the Commission adopted its Code in the form of a decision.

<br />

2 The Commission as the "guardian of the Treaty".

<br />

The second session considered the Commission's Article 155 role as "guardian
of the Treaty" and the Article 169 procedure to deal with
infringements of Community law by Member States.

<br />

It was emphasised that the system of remedies in the Union, like the
system of administration, is based on the principle of closeness to
the citizen. As part of the development of the Union, however, there
is a trend towards greater use of the Article 169 procedure.

<br />

Furthermore, the Commission has acknowledged that citizens who
complain to it about infringements of Community law by Member States
are not just a valuable source of information, but are also entitled
to procedural safeguards, which it will continue to develop and
improve.

<br />

A clear distinction was drawn in the discussion between, on the one
hand, the Commission's administrative procedures in dealing with a
complaint and, on the other hand, its discretionary decision as to
whether or not to bring an infringement before the Court of Justice.

<br />

Several national rapporteurs criticised the Commission's current
administrative procedures. It was argued that more transparency was
needed and that further steps should be taken towards treating
complainants as if they were parties in the procedure. It was
suggested that the starting point should be a comparison with the
procedural rights of complainants in, for example, competition cases
and that lesser rights for Article 169 complainants should be
expressly justified. It is not to be excluded that the procedural
rights of complainants could receive judicial protection.

<br />

It was generally acknowledged that the Commission enjoys a broad
discretionary power as to whether or not to bring an infringement
before the Court of Justice. It was suggested, however, that the
Commission should motivate a decision not to bring proceedings.
Another point of view was that there could be valid political reasons
for not bringing proceedings, but that sometimes it could be too
embarrassing to reveal those reasons publicly. It was not made clear
how this could be reconciled with the idea of citizenship of a Union
which is based on the principle of the rule of law.

<br />

3 Citizens' access to documents

<br />

The general report has a section about transparency, but it contains
detailed discussion of only one aspect of the subject: public access
to documents. In the working sessions, discussion ranged more widely.
Many participants emphasised the need for legislative procedures to be
more transparent. In particular, there was considerable discussion of
comitology. Differing views were expressed about the relationship
between comitology and the enhanced role of the European Parliament in
the legislative procedure following the Maastricht and Amsterdam
treaties.

<br />

The question of access to comitology documents returned discussion
to the main theme of the session. Debate focused on the present
Community rules. These consist of the Decisions adopted by the
Commission and Council, giving effect to their joint code of conduct
on access to documents. Other Community institutions and bodies have
also adopted rules based on those of the Commission and Council.

<br />

A number of criticisms of the current rules on public access to
documents were expressed. In particular: they do not apply to incoming
documents; they do not require registers of documents to be
established; the time-limits for giving a decision on access are too
long; and the exceptions are too restrictive.

<br />

As regards registers, it was explained that the Council does have a
register of documents and that it will publish the register during the
course of 1998: it is to be hoped that other Community institutions
and bodies will follow this good example.

<br />

Differing views were expressed about time-limits. Some people
supported the idea that access should, in principle, be immediate -
especially so as to facilitate the work of journalists in informing
the public.

<br />

Others emphasised that the decision-making procedures of, in
particular, the Council made it difficult to give access promptly. It
was also argued that the Courts' case-law requiring a balancing of
interests in applying certain of the exceptions should imply time for
adequate reflection.

<br />

A large number of other interesting points were made, of which I
have time to mention only three.

<br />

First, it was emphasised that an institution should always consider
whether it can give access to a document even if it is not obliged to
do so by its rules. Naturally, however, the principle of equality
requires that if access is given to one citizen it should not be
denied to others.

<br />

Second, the question was raised of how to challenge a refusal of
access to documents by an agency or other Community body not mentioned
as a potential defendant in Article 173 EC. It appeared that, through
one procedure or another, a judicial remedy would be available, in
addition to the possibility of complaint to the Ombudsman.

<br />

Third, an important point was made about the future: although the
new Article 191a EC concerning a right of access to documents refers
only to the European Parliament, the Commission and the Council, the
principle of transparency which it embodies should apply throughout
the Community administration.

<br />

4 Citizens' access to judicial and non-judicial remedies

<br />

The final session examined the judicial and non-judicial remedies
which citizens can use to protect their rights. The starting point for
discussion was general agreement that citizens should have effective
mechanisms for redress if their rights under Community law are not
respected and that those mechanisms should be as close as possible to
the citizen.

<br />

Mention was made of the valuable work done by the Euro-Jus system of
part-time lawyers giving advice to citizens in the Commission offices
in the Member States.

<br />

There was general agreement that the national ombudsmen could deal
with complaints concerning Community law and that they should inform
citizens of this right. They should also receive the necessary advice
on Community law to enable them to help the citizens, in particular
concerning freedom of movement and - when the Amsterdam Treaty comes
into force - issues of asylum, immigration and visas.

<br />

It was emphasised however, that Ombudsmen are a complement, not an
alternative, to judicial protection of Community law rights which,
according to a constant jurisprudence of the Court of Justice should
always be available. However, co-operation between the European
Ombudsman and national Ombudsmen to create an effective system of
non-judicial protection could help relieve the burden both on the
Courts and on the Commission in its role as guardian of the Treaty.

<br />

In conclusion, I would like to thank FIDE President Professor Dr Ulf
BERNITZ and all his collaborators in the organisation of the Congress
for their hard work to make the occasion a success and for their kind
hospitality.

<br />

Thank you for your attention.

<br />

<br />

*The European Ombudsman, Jacob Söderman, was the general rapporteur
for the theme "The Citizen, the Administration and Community Law"
at the XVIII Congress of FIDE (Fédération internationale
de droit européen) held in Stockholm 3-6 June 1998. His general
report is available in [English](../../fide/pdf/en/fide.pdf)
and [French](../../fide/pdf/fr/fide.pdf).*