Honorable Defensor del Pueblo de España,

Señor Presidente del Foro de la Nueva Economía,

Estimados colegas,

Señoras y señores:

I. Introducción

Es un gran placer estar presente en este encuentro organizado por el Foro de la Nueva Economía, para hablarles de un tema tan actual como es la Europa de los Ciudadanos desde la perspectiva del Defensor del Pueblo Europeo. Permítanme, en primer lugar, expresar mi agradecimiento al Presidente de este Foro, Señor José Luís Rodríguez, por brindarme la oportunidad de estar aquí con Ustedes.

Querría también dar las gracias a mi colega y amigo, Enrique Múgica, por su halagadora presentación, así como a los Defensores del Pueblo autonómicos que han venido hasta Madrid para presenciar esta conferencia. Si bien éste será uno de los ejes de mi exposición, déjenme que les avance que el trabajo del Defensor del Pueblo Europeo en defensa de los ciudadanos europeos ha sido en gran parte resultado de la estrecha colaboración con mis colegas, tanto a nivel nacional como autonómico.

Me siento orgulloso de poder hablarles del papel de un Defensor del Pueblo en un país como España donde el funcionamiento de esta institución es ejemplar y ha servido de fuente de inspiración para otros países, como también para la Unión Europea.

Esta importancia del Defensor del Pueblo en España es una de las razones por las que estaré de vuelta en Madrid en breves días, en el marco de una visita oficial a España durante la que deberé explorar con el Defensor del Pueblo español, Enrique Múgica, los medios a nuestro alcance para colaborar de forma más estrecha en materias como, por ejemplo, la información de la que disponen nuestros conciudadanos sobre sus derechos en la Unión Europea.

Mis estancias en España me permitirán sin duda tomar el pulso al clima político del país, en un momento particularmente importante en la evolución de su régimen democrático. Ésta es una oportunidad que valoro en gran manera ya que, como académico, la democracia española ha sido objeto de estudio para mí durante casi treinta años, habiendo visitado su bello país en varias ocasiones. De hecho, en ese papel académico, una de mis experiencias más memorables tuvo lugar en esta misma ciudad, cuando hace unos años fui profesor visitante del Centro de Estudios Avanzados en Ciencias Sociales del Instituto Juan March. Me complace comprobar la presencia entre el público de algunos amigos de aquellos años en el Instituto Juan March.

Debo confesarles, sin embargo, que mi experiencia en ese Instituto, aunque memorable, tuvo un inconveniente! El alto nivel de inglés hablado tanto por el profesorado como los estudiantes me impidió mejorar mi castellano lo suficiente como para sentirme cómodo pronunciando una conferencia en este idioma. Por lo tanto, y asumiendo completa responsabilidad por este inconveniente, les solicitaré su comprensión y continuaré en inglés.

Europe and its future are currently the object of an intense and turbulent public debate, in which politicians struggle to explain to their public opinions, and indeed to themselves, what it means to bring Europe closer to its citizens: In other words, what it means to create a “citizens’ Europe”.

Part of the problem is to define the relationship between democracy in the Member States and democracy at the European level. But this is only part of the problem. The concept of a citizens’ Europe implies not only democracy, but also the rule of law, which guarantees respect for individual rights, including fundamental rights.

Although we tend to assume that democracy and the rule of law go naturally together, they are historically and analytically different. The relationship between democracy and the rule of law is a fundamental aspect of political and constitutional culture. Moreover, differences in that relationship go a long way towards explaining the variations we find among the political and constitutional cultures in the European Union. No wonder, therefore, that the prospect of a citizens’ Europe is at once so enticing -- and so elusive!

Rule of law describes a condition in which all members of society live under the law and in which public power is constituted and exercised on the basis of what Max Weber described as "legal-rational" rules.

Where the rule of law is long-established, the relationship between rulers and ruled is mediated by institutions that enjoy legal recognition and authority and that place effective limits on the power exercised by the ruler. The most important of these institutions is an independent judiciary, whose decisions are effectively implemented by the executive branch of government.

Modern democracy, on the other hand, is founded on some combination of equality and liberty. The relative balance between these two principles allows us to distinguish different variants of democracy. I shall mention only two of these, in a highly schematic way.

The first derives its roots from the Jacobin legacy of the French Revolution and privileges equality as the fundamental organisational principle of democracy.

Its major drawback is that its unidimensional logic, which promotes homogeneity and discourages diversity, risks generating a flattening dynamic that may impart a dimension of "levelling egalitarianism" to the exercise of public authority. In turn, this raises serious concerns relating to the observance of the rule of law and respect for the enjoyment of rights and obligations linked to it.

The alternative variant is characterised by a pluralist logic, whose overriding preoccupation is the search for an optimal balance between institutions that are alternatively expressive of egalitarian and libertarian principles.

The combination of the pluralist version of democracy and a flourishing rule of law create the optimal conditions for institutions that promote accountability, including the ombudsman, to exist alongside the courts and to complement their work in ways that I shall describe shortly.

I shall refrain from offering you a grand design for a citizens’ Europe, or a road map of how to get there. Those are tasks for political leaders, not for the Ombudsman. However, I do meet frequently with Commission Vice-President Margot Wallström, who has responsibility for the Commission’s communications strategy and I have publicly welcomed her aim to place citizens at the centre of the debate about the future of the European Union.

In the rest of the time allotted to me today, I shall try to explain how the everyday work of the European Ombudsman and of my colleagues in the Member States contributes, at the micro-level, to empowering citizens and offering them a choice of ways to defend their rights, thus helping to raise and maintain the quality of democracy and at the same time promoting the rule of law.

II. The role of the European Ombudsman

The basic function of an ombudsman is to investigate complaints against public authorities. The courts are the essential institutional guarantors of the rule of law and the possibility to bring judicial proceedings against public authorities is a fundamental right. The ombudsman’s role is complementary to that of the courts, offering citizens an alternative remedy, with a different balance of advantages and disadvantages.

Unlike a court, an ombudsman normally has no power to make legally binding decisions. His effectiveness is based on moral authority and, ultimately, on publicity and the ability to persuade public opinion, which, in the pluralist variant of democracy, can provide public authorities with an effective incentive to comply with an ombudsman's recommendations.

The non-binding nature of decisions allows an ombudsman's procedures to be more flexible than those of a court, so that the ombudsman can act relatively quickly and cheaply, and normally at no cost to the complainant.

Moreover, an ombudsman takes into account not only the legal rights of the parties, but also broader principles of good administration, which, for reasons that I will explain later, are inherently open-ended.

The world's first parliamentary ombudsman was established in Sweden in 1809 to check the legality of public officials’ behaviour. Not until 1919 was the Swedish model adapted to the needs of another country, Finland. Then nearly half a century passed before a third Ombudsman was established, in 1955, in Denmark.

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 administration which expanded greatly and took on new roles, especially after the Second World War, as 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 indeed 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 these regions.

The spread of the ombudsman institution has been particularly impressive in the European Union. When the Maastricht Treaty was negotiated, national ombudsmen existed in only a bare majority of the Member States; 7 out of 12. The combined effect of successive enlargements and of the establishment of new offices is that, today, there is a national ombudsman in 23 of the 25 Member States.

At the level of the Union, it was the 1993 Maastricht Treaty which established the European Ombudsman, with the aim of enhancing relations between citizens and the Union level of governance.

In the original Spanish proposal during the negotiations leading to the Maastricht Treaty, the European Ombudsman was meant to supervise the application of the rights of European citizens at the national level. However, the text finally adopted, based on a Danish proposal, had a different objective. When the first European Ombudsman began work in September 1995, it was on the basis of a mandate to deal with maladministration only in the activities of the Community institutions and bodies.

The Treaty of Amsterdam in 1997 brought the so-called “third pillar” of police and judicial co-operation in criminal matters into the mandate, so that I can now also inquire into complaints against Europol and Eurojust.

The Treaty establishing a Constitution for Europe, whose eventual fate remains uncertain, would expand the mandate of the European Ombudsman to cover the “ Union, institutions, bodies, offices and agencies”. This would bring into the European Ombudsman's mandate the European Defence Agency, which was established under the Common Foreign and Security Policy, as well as --perhaps surprisingly-- the European Council, which consists of the Heads of State and Government.

In practice, most of the admissible complaints that I receive are against the European Commission. This is understandable, since the Commission is the main EU body that has direct relationships with citizens and residents of the Union, who are the people entitled to complain to me.

The thrust of the European Ombudsman's mandate is the notion of “maladministration", a term that is defined neither by the Treaties nor by the Ombudsman's Statute. In response to a request from the European Parliament, the Ombudsman presented a comprehensive definition in his 1997 Annual Report, according to which, "maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it". This definition was later endorsed by the European Parliament.

Among the rules and principles binding on public bodies are, of course, those that define the protection of human rights. The European Ombudsman has therefore always regarded violation of human rights as a form of maladministration. This accords with the approach of an overwhelming majority of the international ombudsman community, for whom defence of fundamental rights is an essential part of their function.

The Charter of Fundamental Rights of the European Union

For the European Ombudsman, the principal yardstick to measure compliance with human rights is the Charter of Fundamental Rights of the European Union . The Charter represents, for the first time in the constitutional history of the Union, a codified set of human rights bringing together into a single text the civil, political, economic and social rights enjoyed by the citizens and residents of the EU.

Although the legal value of this instrument is the subject of endless debate, the Ombudsman, as I have mentioned, is not restricted to purely legal rights and duties. I have taken the view that, since the European Parliament, the Council and the Commission publicly proclaimed the Charter in Nice in 2000, failure on their part to apply and respect its provisions would be an instance of maladministration. None of the three institutions has contested this interpretation.

The European Ombudsman actively contributed to the work of the Convention which drafted the Charter. Thanks to the initiative of my predecessor, the final text included an innovative type of right, unknown in similar codes: the right to good administration, enshrined in Article 41.

This Article contains some examples of what good administration involves such as handling matters impartially, fairly and within a reasonable time; hearing a person before any individual measure which would adversely affect him or her is taken; and providing access to the person’s own file.

The Article does not, however, contain an exhaustive account of good administration, which is inherently a dynamic and open-ended concept based on the idea that, in modern European societies, the public administration exists to serve citizens, not vice versa. This principle can be formulated and expressed in different ways: citizen-friendliness, service-mindedness, or indeed, as the right to good administration.

In many cases, there is a degree of overlap between the requirements of good administration and legal obligations, which are authoritatively and bindingly determined by the courts.

It is important, however, to make clear that illegality is not identical to maladministration. The rule of law requires that public authorities should act lawfully: thus it cannot be good administration to violate the law. On the other hand, principles of good administration may require more of a public authority than merely not to break the law.

The work of ombudsmen therefore complements that of the courts, allowing the requirements of good administration to evolve to meet citizens' increasingly high expectations of standards of service by public authorities, without necessarily implying that citizens have a legal right to enforce such standards through actions for annulment, or for damages.

The European Code of Good Administrative Behaviour

The European Ombudsman provided additional guidance for citizens and officials on the requirements of good administration in one of his most important own-initiative inquiries, which resulted in a recommendation that all European institutions and bodies adopt a Code of Good Administrative Behaviour to identify the principles that their staff should respect when dealing with the public.

The text draws inspiration from Spanish administrative law, among others, and covers legal concepts including impartiality, lawfulness, proportionality, and objectivity, as well as broad standards such as fairness and reasonableness.

The Code was adopted on 6 September 2001 by the European Parliament, in the form of a resolution.

In my investigations and decisions, I systematically refer to the Code and make extensive use of the principles it embodies. By explicitly defining these criteria, the Code helps both citizens and the administration focus on their mutual expectations in a way that promotes trust and more effective communication.

III. The European network of ombudsmen

As I have explained, the European Ombudsman’s mandate is limited to the European Union level. However, t he implementation of many aspects of European Union law is the responsibility of national, regional, or local administrations in the Member States.

Many citizens find it difficult to understand that the European Ombudsman cannot inquire into actions by a national, regional or local entity, even when a right of Union citizenship, such as the freedom of movement guaranteed by Article 18 of the EC Treaty, is involved . As a result, c lose to 70 % of the complaints that I receive are outside my mandate.

Many of these complaints can be dealt with effectively by my counterparts at the national or regional level. The European Ombudsman has therefore always given high priority to co-operation with ombudsmen in the Member States. Soon after taking up his duties in 1995, the first European Ombudsman made it clear that he could only pursue his mission and seek to protect the rights of the citizens of the Union through close co-operation with his colleagues in the Member States, all of which have established ombudsmen or similar bodies, at the national and/or the regional levels.

Already in 1996, we agreed to set up a flexible form of voluntary co-operation. The initial concrete step was the creation of a network of liaison officers to act as a first point of contact within each ombudsman's office for other members of the network. A pattern was established for organising seminars of the national ombudsmen, every two years in principle, as well as regular meetings of the liaison officers.

Meetings of the regional ombudsmen have also been organized, most recently in Valencia in 2003. The next such meeting is scheduled for November 2006. Future meetings will take place in alternate years from the meetings of national ombudsmen, at which the regional colleagues will also be represented. We have also developed effective means of communication through a lively website and internet discussion forum, an electronic daily news service and a biannual newsletter, which enable us rapidly to exchange information and share best practice.

The process set in motion by the Network has been tremendously successful. We can now truly speak of a "European Network of Ombudsmen", comprising some 90 offices in 29 countries throughout Europe. This is truly an example of subsidiarity in action, bringing remedies as close as possible to the citizen in a way that takes into account the importance of the regional dimension of ombudsmanship in some Member States, as for example in Spain.

Let me give you a few examples to illustrate the point. In a number of cases concerning the discriminatory nature of a Spanish statute on Social security benefits for disabled people, I had no power to make an inquiry, unlike my colleague, the Spanish Ombudsman. Similarly, I was not entitled to start an inquiry into the different prices paid by a Greek citizen and a foreign tourist to visit the Parthenon, in Athens. But my Greek counterpart did. In a complaint lodged by the foreign spouse of a British soldier, who argued that she was unfairly charged tuition fees on the basis of her nationality, I could not question the UK authorities, whereas the UK Parliamentary ombudsman had the power to do so. In all of these cases, with the prior consent of the complainant, I transferred the matter to the relevant national ombudsman.

Close cooperation with my colleagues is thus a central aspect of my work for the prompt and effective resolution of individual complaints. Effective co-operation is equally vital, however, for what I call the proactive mode of work of the ombudsman institution.

A Europe in which the rights of citizens are respected in practice, as well as solemnly acknowledged in declarations of various kinds, depends largely on the quality of the work of the public administrations in the Member States, and on the extent to which supervisory bodies, including ombudsmen, succeed in promoting high quality administration.

In recent years, cooperation among the various Member States' administrations and the EU institutions has continued to grow in scope and intensity, especially in fields related to security. Bodies such as the European Police College, the EU Borders Agency, the European Network and Information Security Agency, Eurojust and the European Aviation Safety Agency have strong national representation. Networking is essential to their functioning. They constitute the visible EU tip of the increasing intensity of cooperation among administrations at all levels of the European Union.

In order to promote and protect the rights of citizens and residents, cooperation among administrations needs to be matched by cooperation among ombudsmen. Ombudsmen are well placed not only to provide individual remedies when public administrations fail to apply EU law correctly, but also to avoid such maladministration happening in the future by educating and encouraging public authorities and dealing with systemic problems.

Despite the undoubted success of our cooperation to date, the ombudsmen of Europe should not be complacent. Our fast evolving societies bring great benefits for all, but also pose potential new threats to the rights of our citizens. There is both the opportunity and the need to further secure and promote the role of ombudsmen in the evolving European legal and political culture.

For example, the Spanish Ombudsman and I have already coordinated our activities successfully in dealing with a complaint that involved both the European and the national levels of governance. The case arose from the decision of the European Commission to open an infringement proceeding against Spain, which the complainants feared would result in the imposition of fees for borrowing books from public libraries.

Mr Múgica and I undertook parallel investigations, in which we sought respectively to elucidate the role that the Spanish authorities and the European Commission played in this matter. I am confident that this mutual collaboration has contributed to better protecting the fundamental right of all European citizens to culture.

In the future, I i ntend to explore with my colleagues the feasibility and usefulness of extending this kind of co-operation in the direction of more formal joint inquiries.

In order to stay within the time allotted to me, I will not elaborate at this point on other cases from Spain that I have received, but will be happy to do so in the question-and-answer period, if you wish. I will just mention that the European Ombudsman has been called upon to deal with an important number of complaints from Spanish citizens, residents and organisation, among which I could mention those involving the repairs of the submarine Tireless in Gibraltar, violence against Spanish truck drivers in France, the Commission's handling of a complaint regarding the dam in Itoiz, failure by the EU to provide assistance to the victims of terrorism in the Pays Basque, or the Commission's decision not to intervene in the Spanish refusal to grant a family reunion visa to a homosexual couple.

IV. Conclusion

Ladies and Gentlemen, dear colleagues, the process of European integration has moved at a varying pace, but every successful step taken has involved greater attention to the expectations of our fellow citizens.

The rights of citizens and residents of the Union should constitute the very foundation of Europe. Only by ensuring the reality of these rights can individuals be protected from abuses and arbitrariness on the part of European Union institutions, or of national authorities when they are implementing EU law.

Correspondingly, the acknowledgement of these rights and the existence of effective means to secure them helps to legitimate the activities of the European institutions. The protection of the rights of citizens is also an integrating factor, since it helps reinforce the democratic fabric of the Union and to strengthen common European values.

As I have mentioned, the role of the courts is fundamental to the rule of law. The deliberate provision of choice, such as the opportunity to decide between alternative avenues of redress -- for example between a court and an ombudsman -- constitutes a distinct feature of the pluralist variant of democracy. In turn, the capacity to provide citizens with choice serves to enrich the range of "products" that such a democracy can offer its citizens and, thus, enhances its quality.

The development of the ombudsman institution in Europe and the success of the European Network of Ombudsmen is thus a contribution to, as well as a product of, the success of the pluralist variant of democracy in our continent.

At the same time, ombudsmen also help promote the rule of law, because it is always good administration to comply with legal obligations.

The ombudsman institution is thus part of a European political and constitutional culture that is based both on pluralist democracy and the rule of law and which therefore respects and the rights of its citizens and residents.

Since the establishment of the institution, the European Ombudsman has striven for a more open and democratic European Union in which the rule of law and respect for human rights are paramount principles. This enterprise would not have been possible without the support and cooperation of my national and regional counterparts in the European Network of Ombudsmen.

There is no denying, however, that the current impasse over the future of the EU's Constitution represents a critical juncture in the development of a citizens' Europe. But whatever the eventual fate of that Constitution, co-operation among national administrations and the EU institutions and bodies in the EU’s multi-level system of governance will surely continue to grow in scope and intensity. The challenge for ombudsmen is to help put citizens’ rights and interests at the forefront of such developments, not just in rhetoric but in reality, in the everyday business of administration throughout the territory of the Union.

I remain deeply convinced that success in this difficult task is possible only when ombudsmen at all levels, European, national, regional and local, effectively collaborate and co-ordinate their efforts towards a common goal of better service for the European citizens.

Thank you for your attention.