Introduction

1. In July 1995 the European Parliament elected me as the first European Ombudsman and in September of the same year I made a solemn undertaking before the Court of Justice to perform my duties with absolute independence and impartiality. So I've been in office for a little more than a year.

My presentation today is basically made up of three parts. I will first explain to you the position of the European Ombudsman in the system of legal protection of the rights conferred on European citizens by the founding Treaties. Afterwards, I will share with you my experiences over the past year and, finally, I will comment on the future of European citizenship and the position of European Ombudsman.

The Ombudsman in the system of legal protection

2. The legal protection of the rights conferred on individuals by Community law is first and foremost provided by the Court of Justice, the Court of First Instance and the national courts. Article 173 of the Treaty establishing the European Community allows individuals to take legal action against acts adopted by the Community institutions, however with regard to acts of general application, only on the difficult condition that the applicant must be "directly and individually" concerned by the contested act. In so far as the implementation of such acts is a matter for the Community institutions, the individual will normally be able to challenge the enforceable act before the two Community courts in Luxembourg and, in the context of such an action, to plead the inapplicability of the act of general application. In so far as it is for the national authorities to carry out acts of general application - and I would like to emphasise that most Community legislation is administered by the national authorities - , will be able to challenge before the national courts the measures by which the national authorities implement Community legislation and, in the context of such an action, to assert that the Community act of general application underlying the measure of national implementation is unlawful. In dealing with this question, the national court may use the procedure provided for in Article 177 of the Treaty of Rome to refer questions to the Court of Justice for a preliminary ruling.

2.1. If the individual considers that a Member State is in breach of his rights under Community law, he must, in principle, also apply to the national courts or, where appropriate, to the national ombudsman. The individual may also consider that his interests are safeguarded by lodging a complaint with the European Commission, which is required under Article 155 of the Treaty to ensure the application of Community law; in order to facilitate the lodging of complaints, the Commission has published a standard form in the Official Journal (OJ 1989 C 26, p. 6). Complaints by individuals are indeed the Commission's most important source for detecting Member States' non-compliances. Such a complaint may ultimately lead to the Commission deciding to bring an action under Article 169 against the Member State concerned. The question of whether the Commission is obliged to deal with a complaint lodged is disputed; however, it is established in the case-law of the Court of Justice that an individual cannot bring an action against the Commission on the ground that the Commission has not pursued a case of failure to fulfil obligations on the part of a Member State (see, inter alia, Case C-87/89 Sonito [1990] ECR I-1981). It is common for the Commission to inform the complainants that, first, it is for the national courts to ensure that Community legislation is applied by the national authorities provided that the provisions in question are directly and immediately applicable and, if necessary, to order the Member State concerned to make good the damage which the individual may have suffered as a result of the infringement of the Community provisions in question.

2.2. If the individual considers that his or her rights have been violated, he or she may also choose to submit a petition to the European Parliament. Until the Maastricht Treaty, the right to submit petitions to the European Parliament was only provided for by Parliament's Rules of Procedure. The right was formally recognised by the Maastricht Treaty and is now provided for in Articles 8D and 138D of the Treaty of Rome and therefore forms an integral part of the notion of European citizenship. Petitions are dealt with by one of Parliament's standing parliamentary committees which very often asks the European Commission to investigate the matter. In the event of non-compliance by a Member State, the individual may have an interest in referring the matter to Parliament rather than directly to the European Commission because of any pressure that Parliament may exert on the Commission to pursue the matter vis-à-vis the Member State concerned.

2.3. Finally, we come to the post of European Ombudsman which was also created by the Maastricht Treaty as a component of the notion of European citizenship. In the Treaty of Rome, Articles 8d and 138e were inserted, according to which every citizen of the Union has the right of access to the Ombudsman in relation to cases of maladministration in the actions of Community bodies and institutions, with the exception of the Court of Justice and the Court of First Instance in the exercise of their judicial functions.

We thus see that the role that the Ombudsman can play in monitoring the correct application of Community law is seriously limited in the sense that the application carried out by the national authorities has been excluded from the sphere of competence. I would repeat that most Community legislation is administered by national authorities. The control with this administration, therefore, has to be exercised at national level by the competent entity, such as the national Ombudsman, which highlights the need for some kind of cooperation between the European Ombudsman and his national counterparts; This is a topic that I will come back to later in this paper.

The work carried out during the past year

3. This limitation of the European Ombudsman's scope of competence to which we have just referred largely explains the large number of inadmissible complaints that have been received. It seems that many citizens have not perceived the limitation and therefore turn to the European Ombudsman when faced with a Community problem in the hands of the national administration. To remedy this situation, I and my office have devoted considerable effort to informing the public about the new institution and its area of competence.

3.1. To date, around 1000 complaints have been received, of which around 700 have been dealt with. Of these 700, around 150 have been sent to a Community institution to decide on the subject of the complaint and almost all of these 150 concern the European Commission, which is hardly surprising given that the Commission is the Community institution that mainly takes decisions that have a direct impact on citizens. By the end of September this year, 27 cases had been completed; in 11 cases an amicable settlement was reached between the institution concerned and the complainant and in only 1 case did I consider it appropriate to make a critical comment concerning the institution. This situation is largely due to the fact that the European Commission has adopted a very positive attitude. The reason why the processing has been completed only in so few complaints is due in particular to the time limits that apply in the procedure. The institution against which the complaint is directed has a period of 3 full calendar months (4 months with translation) to submit its first comments on the complaint and then the complainant has a full calendar month to submit its comments on the comments. These deadlines have had the consequence that it has not been until this autumn that it has been possible to enter into trials of finding friendly solutions between the complainant and the institution in question or to enter into deeper investigations. It is clear that it is not until the end of the year that the totality of cases in which the claimant has obtained some type of success can be appreciated; National experiences show that this happens in 10-15 percent of cases.

In the material that has been distributed to you you will find more details about (some?) specific cases as well as more statistical elements.

As for the most common objects of complaints, it is difficult to extract this information from statistics. Among the most common objects I think it is possible to mention alleged delays in the handling of cases, alleged refusals to provide information and allegations regarding irregularities in recruitment procedures for the European civil service.

As far as the geographical distribution of claims is concerned, it can be seen that the following countries have proportionally more claims than their share in the total population of the Community: Spain, Portugal, England, Ireland, Austria, Belgium, Luxembourg, Finland and Denmark. In the case of Belgium and Luxembourg, this is probably explained by the fact that the Community institutions are located in these two countries.

3.2. The Treaty provides that the Ombudsman may conduct inquiries "on his own initiative". In the intervening period, I have initiated three investigations on my own initiative. The most important concerns transparency within the Community, rather the variant of transparency called public access. As part of the signing of the Maastricht Treaty, the Member States adopted a declaration expressing their commitment to transparency (1). In order to implement this declaration, the Council and the Commission adopted at the end of 1993 a Code of Conduct governing public access to their documents. However, the other community institutions and bodies continued to live in darkness. In view of this and the fact that many of the complaints submitted to my office concerned refusals to provide information, I approached the other Community institutions and bodies in the summer of this year to ask them whether they intended to adopt rules similar to those of the Commission and the Council. The first responses received are positive and it is my hope that those that are still lacking can be characterized in the same way.

I for my part have established that in my office the public may have access to complaints, unless the complainant has requested confidentiality. I have also provided for public access to the first observations made by the institution concerned on a complaint. However, for the remainder of the procedure until I make my final decision in the case, the principle of public access does not apply in order to facilitate the possibility of reaching an amicable settlement between the complainant and the institution. I described this practice in my 1995 annual report which was submitted to Parliament during the spring of this year, and Parliament did not raise any objections; On the contrary, the reactions were positive. However, Parliament considered that more frequent use could be made of the power to initiate investigations on its own initiative.

Of the two other initiatives, one concerns the right to information in the context of competitions organised by the Community institutions and the other concerns the rights of the complainant in proceedings conducted by the Commission with a view to establishing whether or not a Member State has failed to fulfil its obligations where such proceedings are based on a complaint (procedures ex Article 169).

3.3. With regard to the matters already completed, I think it is worth mentioning the following: As I have already mentioned, the European Commission has the task of ensuring the application of Community legislation. When it comes to ensuring implementation by the Member States, the Commission has asserted that it has discretion in determining whether there is non-compliance by a Member State and that, therefore, this activity of the Commission could not be the subject of an investigation by me. I, for my part, have asserted the view that despite a discretionary power, legal principles and good administrative conduct have to be respected and that I do have the competence to investigate whether that has been the case in a specific case. On the other hand, it is clear that my competence gives way to the extent that the Commission’s discretionary power reflects elements of a rather political nature which the Commission may legitimately take into account. It seems that my opinion has prevailed.

3.4. Turning to inadmissible complaints, as I said, a large part of them concern national authorities, or when they are acting under Community rules or in areas governed solely by national law. This has inspired me to start cooperation with national ombudsmen or equivalent bodies. Most Member States have a national ombudsman; a parliamentary committee on petitions has been set up in Luxembourg and Germany. Belgium has two regional ombudsmen, one for Flanders, one for Walloon. There are also regional ombudsmen in Italy, although national offices are being planned in both Italy and Greece.

At a seminar I organised at the end of September in Strasbourg, to which all national ombudsmen or equivalent bodies were represented, we agreed to start cooperation with a view to promoting the correct application of Community law for the benefit of European citizens. The European Commission and the petitions committee of the European Parliament were also present.

Cooperation that is carried out in full equality and with great flexibility aims in particular to be able to refer the citizen as quickly as possible to the competent body to deal with his case. In addition, the possibility of organising joint seminars, conducting mutual visits and exchanging information will be explored in order to increase knowledge of Community law at all levels. All offices will appoint a staff member who will be particularly responsible for promoting cooperation with the other offices.

I hope that this cooperation, which was fully conceived in the spirit of the original Spanish initiative of 1990, will be as successful as possible and will contribute to the correct application of Community law at all levels both in the Community institutions and in the Member States.

Final reflections

4. I am often asked whether the scope of competence attributed to the European Ombudsman is too narrow. In this speech I hope I have given an answer to this question in the sense that the limitation does not prevent constructive cooperation with the other bodies that ensure the correct application of Community legislation, namely the petitions committee of the European Parliament, the European Commission or the ombudsmen of the Member States. In fact, one of these bodies is almost always competent to assist the citizen and, therefore, the important thing is to be able to cooperate in a flexible and effective way in order to provide the citizen with this assistance. I will do my best to make the cooperation successful.

If cooperation fails, it will be for the competent authorities to consider whether the European Ombudsman's field of competence should be extended. Even if so decided, the Ombudsman could only exercise his powers in close cooperation with national bodies, first and foremost with the ombudsmen of the Member States; consideration could be given to the possibility of providing that only if the efforts of the latter are unsuccessful should the Ombudsman refer the matter to them.

As far as I know, the Intergovernmental Conference is not interested in the question of a possible extension of the scope of competence.

4.1. However, the Conference will address issues that may be of interest to the European Ombudsman, for example in terms of transparency. I personally believe that it would be appropriate for the principle of public access to documents of the institutions to be formally recognised in the Treaty. It cannot be ruled out that such recognition could lead the Community administrations to take a more positive attitude with requests for public access.

During my first year as Ombudsman, I have unfortunately had the impression that the effective exercise of the rights conferred on citizens by the Treaty in practice encounters many obstacles, for example in the recognition of diplomas and diplomas. It should not be ruled out that it would be useful to examine in more detail how the rights of citizens, for example, to free movement, could be implemented.

Another issue that interests me personally is the possibility for the Union to accede to the European Convention on Human Rights, even if an accession would have little impact on the performance of my duties as Ombudsman, given that under the case-law of the Court - and now also under Article F of the Treaty on European Union - the Community institutions have for years been obliged to respect human rights as guaranteed by the Convention. However, I believe that it is important for the Union to show its willingness to be part of the international legal community.

These are all proposals which, in my view, should succeed because they are intended to make the Union more humane and social.

I, at my level, dealing with grievances and taking well-founded initiatives, will work towards the same goal.

I thank you for your attention.

(1) Declaration No 17 on the right of access to information:
"The Conference considers that the transparency of the decision-making process reinforces the democratic character of the institutions, as well as the public's confidence in the administration. The Conference therefore recommends that the Commission submit to the Council by 1993 a report on measures to improve public access to information available to the institutions."