1 Introduction

It is a great honour for me to contribute to this symposium.

I shall begin my presentation by linking the role of the two European courts - the Court of Human Rights in Strasbourg and the Court of Justice in Luxembourg - to the nature of the European legal order. The latter embodies, so I shall argue, a particular conception of the relationship between the rule of law and democracy that is propitious to the development of the ombudsman institution. I shall conclude by explaining how the ombudsman institution plays its own role, complementary to that of the courts, in maintaining and strengthening the European legal order.

2 The two European courts and the European legal order

The Strasbourg court

More than half a century has passed since the European Convention of Human Rights (Convention) was drafted, but the Court does not approach the task of judicial interpretation in terms of historical exegesis. Rather, it emphasises that the Convention is “a living instrument which must be interpreted in light of present-day conditions”(1).

This approach to the judicial function challenges the pervasive influence of a traditional narrow conception of law as a set of fixed rules; a conception which goes hand-in-hand with the idea that human rights are, so to speak, a set of ceremonial clothes, to be kept in a separate cupboard from the one marked "law" and worn only on special occasions.

The work of the Strasbourg Court thus has profound implications for the European legal order: it contributes to the very formation of a common European understanding of human rights, not only in terms of substance, but also in terms of the fundamentals of judicial method. In turn, this common understanding has implications for the concepts of law and legality and hence for the rule of law.

The Luxembourg court

Within the European Union, the work of the Luxembourg Court has similarly broad implications and influence.

Schematically, one can identify two lines of doctrinal development that are most relevant in this context. The first consists of the principles of supremacy and direct effect, which empower national courts vis-à-vis other public authorities in the Member States by giving them the responsibility to carry out what is - in substance if not in form - judicial review of national legislation. For many national courts, this is a new and liberating experience.

The second main pillar of doctrinal development is the idea that law includes general principles, such as proportionality, equality, legitimate expectations and fundamental rights. The Luxembourg Court's case-law on fundamental rights draws on the European Convention and, increasingly in recent years, on the case-law of the Strasbourg court.

This also has profound implications for national courts. Since general principles of law, including human rights, are an integral part of Community law, national courts must apply them when dealing with matters that fall within the scope of Community law.

Let me briefly sum up the contribution, as I see it, of the two Courts to the evolving European legal order. First, they not only resolve disputes that are brought before them, but also provide guidance as to how to resolve or avoid potential disputes in the future. Second, the judicial method of the two Courts implies an enriched concept of law and hence of the rule of law, which includes substantive principles as well as more traditional elements of form and procedure.

The two Courts have thus raised the quality of the rule of law as the inseparable and, so to speak, natural partner of democracy in contemporary Europe.

3 Democracy and the rule of law in the European legal order

At this point, let me emphasise a fact that should be obvious: democracy and the rule of law are historically and analytically separate.

Rule of Law

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. This latter characteristic was astutely captured and extensively analysed by Montesquieu in his Spirit of the Laws, under the apt term "corps intermédiaires".

The essential institutional guarantee of the rule of law is the existence of independent courts, whose decisions are effectively implemented by the executive branch of government.

Democracy

All modern democracies have been founded on some combination of equality and liberty. The relative balance between these two principles allows us to distinguish between two variants of democracy in the European Union and beyond.

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 privileges homogeneity over 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 the respect for the enjoyment of rights and obligations linked to it.

The alternative variantis 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.

Such an overarching balance, which, for its crystallisation, consolidation and entrenchment over time, relies on the generation of a dense network of institutional checks and balances or counterweights, akin to Montesquieu's "corps intermédiaires", provides better conditions for the observance of the rule of law and for the quality of democracy than does the first, unidimensional, variant.

4 Ombudsmen as a complement to the Courts

The combination of the pluralist version of democracy and a flourishing rule of law create the optimal conditions for “institutions of accountability”, including the Ombudsman to exist alongside the courts and to complement their work.

Complementarity implies difference rather than identity. The most fundamental distinction between courts and ombudsmen is that a court's decisions are legally binding, whereas an ombudsman's are not. From this, flow two other very important differences:

• First, a court determines the legal rights of the parties to a case, whereas an ombudsman also takes into account broader principles of good administration, which are inherently open-ended for reasons that I will explain later;
• Second, the rules governing court proceedings are necessarily stricter and less flexible than those that apply to an ombudsman's activities.

The ombudsman therefore complements the work of the courts both as regards the norms which apply to public authorities and as regards the methods through which those norms are implemented.

I shall develop only the first aspect in more detail. Let me emphasise first, however, that the fact that an ombudsman's decision are not legally binding is, in my view, a strength, not a weakness. Where the rule of law prevails, the citizen has the fundamental right to bring court proceedings to obtain a legally binding decision about his or her legal rights.

The non-binding quality of an ombudsman's decisions makes it possible for the ombudsman to offer citizens an alternative remedy, with a different balance of advantages and disadvantages as compared to judicial proceedings and, more generally, to play a role complementary to that of the courts.

Principles, legality and maladministration

The fact that his decisions are not legally binding means that an ombudsman's 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.

Moreover, an ombudsman, like a court, not only considers the individual case but also asks how similar cases should be treated by public authorities in the future. In the case of ombudsmen, establishing guidelines for future conduct is not only done on a reactive, case-by-case basis, but also in a proactive way, for example, by publishing codes of good administrative behaviour or taking initiatives to tackle systemic maladministration.

It is therefore essential for an ombudsman's decisions to be reasoned in a way that it is cogent and convincing, both to promote compliance in individual cases and to act as effective guidance for the future.

I mentioned earlier the empowering effect for national courts, vis-à-vis national authorities, of the principles of supremacy and direct effect and the general principles of Community law, including fundamental rights. The same is true for ombudsmen. Ombudsmen are themselves public authorities and are therefore bound - and hence also empowered - by Community law: they can and should apply Community law, including fundamental rights and general principles, when dealing with matters that are within both their own mandate and the scope of Community law.

More generally, it is difficult to understand how it could be good administration for a public authority to fail to act in accordance with human rights under the European Convention, as explicated by the case law of the Strasbourg court.

For ombudsmen, therefore, the reasoning contained in the case law of the two European courts is a precious resource in seeking to identify maladministration and promote good administration, both generally and in individual cases. By studying and explicitly relying on such reasoning, ombudsmen can help make their own decisions more cogent and convincing.

It is important, however, to make clear that illegality - even when based on a concept of law that includes principles and fundamental rights - 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, the fact that a public authority has not acted illegally does not preclude the possibility that it may have failed to comply with the principles of good administration.

This brings me to the normative contribution of ombudsmen to the evolving European legal order. In modern European societies, the public administration needs constantly to remember that it 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, which is recognised as a fundamental right in the Charter of Fundamental Rights of the European Union. The basic principle has many ramifications, such as duties to be polite, helpful, fair, and reasonable.

In many cases, there may be a degree of overlap with legal requirements, which are authoritatively and bindingly determined by the courts. In other cases, however, principles of good administration may require more of a public authority than merely not to break the law. In fact, the principles of good administration (and their converse, the concept of maladministration) are inherently open-ended, because administrative activity needs to respond rapidly to changing circumstances in order to serve citizens effectively.

At the normative level, the work of ombudsmen therefore complements that of the courts, by allowing the requirements of good administration to be open-ended so that they may 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.

Ombudsmen also complement the courts through having more flexible procedures, which are possible because the result of the ombudsman's activity is not a legally binding decision.

For example, there is a growing perception that courts (and ombudsmen) still deal with too many cases that could have been resolved more quickly and easily at an earlier stage. Ombudsmen could tackle the issue by encouraging the public administration, where appropriate, to include "alternative dispute resolution" techniques in their internal grievance-handling procedures.

In this way, ombudsmen could play an even greater role than at present in helping avoid unnecessary litigation and thereby reduce the burden on the courts.

5 Conclusions

The complementarity of courts and ombudsmen means that their co-existence does not lead to unnecessary duplication or to competition, as some would aver, but rather allows citizens and users of public services to choose the appropriate form of dispute resolution for their particular circumstances.

Someone who wants a legally binding decision about his or her legal rights and obligations has the fundamental right to go to court; a right which is an essential element of the rule of law. The additional possibility to choose to go to an ombudsman instead of a court enhances the choices available to the citizen. By choosing the ombudsman, the person avoids costs and often gets a quicker result. The ombudsman's procedures can also be more flexible than those of a court and the normative criteria applied are broader.

As regards the latter point, there is a clear conceptual distinction between, on the one hand, good administration as a legal norm that may justify annulment of a decision, or be part of the basis for the award of damages and, on the other hand, the open-ended principles of good administration developed by ombudsmen. Courts and ombudsmen need to work together to make the distinction easily understandable to citizens.

The deliberate provision of choice, such as the opportunity to decide between alternative avenues of redress, 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" such a democracy can offer its citizens and, thus, enhances its quality. The development of the ombudsman institution in Europe 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 they rely on the case-law of the courts, including the two European courts, when issues of legality are concerned and because it is always good administration to comply with legal obligations.

The ombudsman institution thus reflects, as well as helping to maintain, alongside the courts, the quality of both elements of the evolving European legal order; that is to say pluralist democracy and the rule of law.

Thank you for your attention.

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(1) Tyrer v. United Kingdom, judgment of 25 April 1978, Series A no. 26, at para. 31.