Mr Chairman!

Dear Members of the Committee!

I would like to thank you for giving me this opportunity to speak on the proposed modification of Article 3 of the Ombudsman's Statute. You may recall that I already presented my views on this issue to you at your meeting on 24 May 2000. On that occasion, I distributed a note on the rights that the national ombudsmen have with regard to the matters that we are to discuss today. I am making this note available again at this meeting for those who require it.

Furthermore, my Office has provided all the information requested by the Rapporteur and has answered all the questions that she has raised in order to fulfil her task. Most importantly, the Head of my Administrative Department, Mr João Santanna, drafted a legal opinion as a response to the legal opinion that the European Parliament's Legal Service produced on 27 September 2000.

I would like to take this opportunity to thank the Rapporteur, Mrs Almeida Garrett, for the dedicated and professional way that she has carried out her work. I am also grateful to Commission Vice-President Loyola de Palacio for her frank contribution to the debate.

I am sure that you are all by now aware of the role of the European Ombudsman and the way that the Ombudsman operates. I have made available in this meeting the most recent statistics concerning my work as European Ombudsman.

Before looking in detail at the proposed changes to my Statute, I would like to stress that the Community institutions and bodies have from the beginning co-operated with my inquiries in a positive way. The statistics show that in many cases, the institutions have settled complaints directly with the complainants or have accepted my proposals for a friendly solution. Naturally there have been disputes and disagreements from time to time, which is normal in these kinds of relations, but the overall picture has been very positive.

As the first holder of the Office of European Ombudsman, I used my first mandate to create a fully working Office and to establish efficient and effective working methods. This process was closely monitored by the European Parliament, and particularly by its Committee on Petitions. In dealing with my Annual Report for 1998, the Committee on Petitions noted my view that there was, to my mind, a need to change the Statute of the Ombudsman. I asserted that I should have a right to obtain information and to have access to documents in carrying out my investigations.

The Rapporteur for the Committee on Petitions' Report on my Annual Report for 1998 (A4-0119/99) was Laura de Esteban Martin. The Committee supported the need to change Article 3 of my Statute. The European Parliament adopted Decision 94/262 of 9 March 1994, urging the Committee on Institutional Affairs to pursue the amendment of the Ombudsman's Statute. It stated that such an amendment was "essential if European citizens are to be able to have full confidence in the Ombudsman's work."

As The Parliament did not have time to start the procedure before the election, I renewed the proposal to change the Statute in a letter that I sent to the President of the Parliament on 13 December 1999.

I proposed that three points in the Article be changed:

• First of all, the possibility to refuse the Ombudsman the right to inspect a file on "duly substantiated grounds on secrecy" should be removed.
• Secondly, the stipulation that 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" is in my view unacceptable.
• In 1999, the European Commission interpreted this paragraph in such a way as to conclude that a Commissioner, as a Member of the institution, does not have an obligation to testify at the request of the Ombudsman. I believe that Commissioners should testify, when necessary, to the Ombudsman.

With regard to access to documents, it is important to stress that the number of cases where the Ombudsman has decided to inspect documents is rather small. I have not exercised this possibility more than about twenty times during more than five years of activity and more than 1000 investigations. There have never been difficulties in inspecting the documents that the Council and the Parliament hold so far However, the words "duly substantiated grounds" have provoked many lengthy discussions with the Commission services before documents have been released. The latest such incident is still not fully resolved.

In some cases, the Commission has allowed an inspection only after I have threatened to ask the European Parliament for assistance in order to get permission to inspect the documents. These problems have reduced the time that I have available to deal with complaints and have led to undue delays in closing citizens' cases. The latest problem, which is still ongoing, concerns totally harmless documents from a recruitment procedure. The inspection in question was carried out on 30 January.

In contrast with earlier practice, the Commission representatives refused permission for us to take copies or to copy documents by hand. As oral negotiations did not help, we addressed a letter to the President of the Commission on 19 February. We have so far received two of the three documents in question. They are quite harmless recruitment procedure documents.

The Ombudsman's Statute currently contains a somewhat unfortunate phrasing as regards the hearing of witnesses. It suggests that witnesses must stick to saying what their superiors have instructed them to say. The hearing of witnesses is an essential tool to make it possible to establish the truth in a case. The Statute's current wording is therefore totally inappropriate. I do not believe that any Member State has such a provision in place. It is important to note that this wording does not find any legal base in the Staff Regulations, which only deal with the need for permission to be granted for staff appearing as witnesses.

As regards the hearing of Commissioners, there has been one case in which I would have needed to hear a Commissioner as a witness, in order to clarify questions regarding one document that had raised some doubts during an investigation. The Commission accepted my request to hear all of the other witnesses in the case, but rejected my request for hearing the Commissioner. It stated that the provision in the Ombudsman's Statute does not cover Commissioners. In this case the Commissioner was not under any suspicion, but could easily have replied to my question with a simple explanation.

It is to be noted that both OLAF and the recently created European Data Protection Officer do have unlimited access to the information they need for their investigations. Given this, why would it not be possible for the Ombudsman, representing the citizens, to also have unlimited access?

In a democratic society, citizens surely understand that there cannot be access to all documents and all information for everybody. But it gives them confidence in the Ombudsman's activities if they know that he has access to all documents and can inspect them to verify what is the truth in a case, even if he cannot release them. As I have said before, the Ombudsman and his staff are of course bound by the same rules on confidentiality as all other civil servants of the European Union.

I would like to stress that the proposal to enable the Ombudsman to take testimony from Commissioners is not an attempt by the Ombudsman to take over the political supervision of the Commission. To my mind, to think that is a pure misunderstanding. The proposed revision only deals with obtaining proper information for investigations and not with the Ombudsman's remit at all.

I have frequently made clear that the Ombudsman is only there to supervise administrative and not legislative or political activities. Although I have received many complaints concerning the political work of the European Parliament and of individual MEPs, I have always closed this kind of complaint as inadmissible.

But there are situations where political bodies take purely administrative decisions, as the Quaestors of the European Parliament often do. We have sometimes started investigations in such cases and have had the full co-operation of the Parliament and its administration in doing so. In one case, the Chairman of the Quaestors took an initiative to personally take part in an inspection that I undertook and gave all the necessary information.

Therefore, the suggestion that the proposed new provision would lead to hearings of Members of Parliament as witnesses to me seems totally misplaced. The co-operation that the Parliament has given to me shows that it understands that politicians can be responsible for administrative tasks from time to time.

During the five and a half years that I have worked as European Ombudsman, I have never received a complaint against the Council that linked any member of a government to an issue. I do not foresee receiving such a complaint in the future either, as the Council rarely deals directly with citizens. The complaints received concerning the Council cover staff and recruitment matters and disputes on access to documents.

This proposal in fact concerns the Commissioners. The European Commission is the very administration that is in daily contact with European citizens, associations and companies. It is also the main executive institution of the Union. It is headed by a College of Commissioners who have both a political and an administrative role, similar to that of many members of government in many Member States. When the Commissioners are carrying out their political role in taking initiatives on legislation or dealing with purely political matters, it is not for the Ombudsman nor for the Courts to supervise them, but solely for the European Parliament.

We all know however that in their present role, some Commissioners have many administrative obligations and duties. They are servants of the institutions within the meaning of Article 288 of the EC Treaty. Cases of this type were highlighted in the reports of the Committee of Independent Experts in 1999.

So far the European Ombudsman has received very few complaints relating to the European Commissioners. I can recall at least three cases in which the Commissioners in question have given their views in writing on a matter under investigation. In doing so, they never even suggested that they should not be responding to the Ombudsman or that the matter in question was not an administrative activity.

For me it is impossible to accept the idea that the Commissioners should not have any obligations to contribute to undoing maladministration directed against European citizens. If such a high-handed attitude prevails, how will it be possible to encourage good relations between the European Commission and its citizens at all? And how would such an attitude correspond with the principle of accountability that should be strengthened in the Commission White Paper?

It has been suggested that the European Ombudsman is looking for a political role by proposing the Statute amendments. I have been an ombudsman for more than eleven years now. I come from an Ombudsman tradition that firmly thinks that politics is for politicians and that the Ombudsman should stay out of that field. I have by now presented five Annual Reports to the European Parliament for scrutiny. In all that time, I have never been accused of overstepping my mandate in this sense. I therefore reject this suggestion as being totally unfounded.

I am sorry that I have spoken at such length. I would like to conclude by saying that all my activities are based on complaints presented to me by European citizens. My intention is not to unduly burden or criticise the European institutions and bodies in their activities, but to show them how to enhance their relations with the citizens and thus increase confidence in the European Union.

Thank you for your attention.