Rt. Hon Neil Kinnock
Vice-President of the European Commission
rue de la loi 200
B-1049 Bruxelles

Dear Neil,

Thank you for your letter of 28 May 2002 in which you comment on my annual report for the year 2001 and mention a number of subsequent achievements. I should underline that the annual report covers the year in question and the achievements are of a later date, so therefore they are not covered in the report. We have acknowledged them publicly on our website and with press releases when they occurred.

You also refer to the own-initiative inquiry on freedom of expression of officials and say that I accepted the steps taken by the Commission. It is true that I welcomed the Commission's positive reaction to the inquiry and willingness to consider reform. I am disappointed, however, that the Commission's proposed changes to the Staff Regulations would retain the system of prior censorship of publications by members of staff. Is there any real need to demonstrate this kind of mistrust to a skilled and dedicated personnel? In Portugal and Spain, this kind of censorship was abolished when authoritarian rule was overthrown. In Denmark, Sweden and Finland it has not existed for a very long time. There is no censorship in Belgium or Germany either. The only country we know of where this kind of rule exists is the UK. There the civil service is governed by an order of the Executive, not an Act of Parliament and the European Convention on Human Rights was only recently incorporated into domestic law.

Everyone should accept the need for a fair balance between the freedom of expression of civil servants and the legitimate interest in ensuring the proper functioning of the civil service in a democracy. An official who writes negative articles that are not based on the truth and real intentions of the administration must, of course, face his or her responsibilities. But censorship is a drastic measure. According to the Court of Human Rights, its dangers are such that they call for the most careful scrutiny. An overwhelming majority of the Community staff write articles and give speeches in the true interest of the administration and demonstrate their commitment to Europe and its citizens. Experience shows that disloyal civil servants ignore the provision for censorship and publish anyway. To me it seems obvious that the abolition of censorship would only create a more open atmosphere of trust and respect in the EU administration, as well as demonstrating respect for the Charter of Fundamental Rights.

Many Member States have lived for a long while without censorship of their officials and thus showed trust in their judgements. This has produced a more open environment where discussion is based on fact and expertise. I do think that you should acknowledge that the time has come for the European administration to open up and trust its staff. Please take an initiative and put away the censorship rule. This matter is in your hands.

The other matter where I would think that you could take a further step, concerns the Code of good administrative behaviour.

This idea was already discussed with Secretary General Williamson in 1996. Officially, it was put on paper by Roy Perry in 1997 in the report of the Committee on Petitions on its activities for 96/97. Secretary General Trojan started work on a draft in 1997, as it was considered that the Commission should take the lead in the matter. The drafting was not a high priority until late 1998 and early 1999 when the Santer Commission was in crisis. When the Commission collapsed, there was a first draft of a Code on the table. We were then told that the Commission had no political mandate and the matter would have to wait.

Taking into consideration all the years that had passed, I decided that the Ombudsman's office should prepare a draft code to get this important matter going. This led to the developments you know. The European Parliament adopted the European Code of Good Administrative Behaviour in September 2001 and suggested that the Commission should make a proposal for a law on the matter. Most of the Member States have laws on good administration, so why should the EU not have one for all the institutions and bodies to follow?

It is true that the Commission has adopted its own code, which must be seen as a good step to a commitment on good administration. But the Commission's code is in some ways weaker and does not clearly present its provisions as containing rights of the citizens in relation to the institutions and bodies.

The present Commission's answers to complaints to the Ombudsman as a rule clearly demonstrate that it is committed to follow the principles of good administration in Community law. It has also committed itself to the Charter of Fundamental Rights which, for the first time in a supranational context, enshrines the right to good administration as a fundamental right. So I cannot understand why the same Commission has repeatedly bluntly rejected the idea of drafting a law proposal on the matter, as most of the work is already done. To me it seems this attitude only harms the profile of an institution that, as you suggest in your letter is there to work for Europeans and should be given credit for its good work from time to time. Taking my two humble proposals into consideration seriously would make it much easier for of all us to do so. This I can assure you.

Finally, I would like to thank you for suggesting the possibility of a meeting. I would be delighted to meet you in September 2002.

 

 

Jacob Söderman