Speech of the European Ombudsman -The effectiveness of the Ombudsman in the oversight of the administrative conduct of government, 7th International Ombudsman Institute Conference, Durban, South Africa

The European Ombudsman's mandate

The European Ombudsman has the mandate to conduct inquiries concerning instances of maladministration in the activities of the institutions and bodies of the European Communities. His powers and duties are laid down in the Treaties - notably Article 195 of the EC Treaty - and the Statute of the Ombudsman(1).

Friendly solutions

The Treaties and the Statute provide the European Ombudsman with a number of tools that he can use where he finds that there is an instance of maladministration. However, before turning to these tools it is important to point out that the Statute directs the Ombudsman to seek, as far as possible, a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complainant.
This obligation prevails throughout the whole course of the proceedings. For instance, where a complainant solely claims that the administration has failed to answer to a letter, it is customary for the Ombudsman's services to contact the administration informally in order to find out whether the administration has already replied or is about to reply to the complainant's letter. If this is the case and as soon as the Ombudsman has received a copy of this reply, the complaint will be regarded as settled. The Ombudsman Office is also trying to promote that the institutions or bodies in question look for a settlement directly with the complainant. This has been fairly successful. Almost 200 cases, during five years, have been settled only when the complaint has been sent to the institution or body concerned. It may, for example, have been an answer to a request, or releasing information, or a document asked for, or a delayed payment to be met, or the annulment of a wrongly announced competition or tender.
If a settlement is not achieved, the Ombudsman submits proposals for a friendly solution to the administration where appropriate. This is the way of working adopted in the French Ombudsman system (la mediation). These proposals are often accepted by the administration. As the institutions and bodies have settled many cases directly there has been less room for Ombudsman initiated proposals of friendly solutions. Only in some 10 cases the Ombudsman has achieved a friendly settlement. This figure, for settlements and Ombudsman initiated friendly solutions, also demonstrates the readiness of the European institutions and bodies to co-operate with the Ombudsman and to remedy instances of maladministration.
Where a friendly solution cannot be achieved, the Ombudsman will use the tools at his disposal.

Critical remarks

The Ombudsman has developed a practice that consists of making a critical remark in cases where there has been maladministration but where there is (for example due to the lapse of time) no sensible way to redress the situation. The idea behind the critical remark is to state an established instance of maladministration and seek to avoid a repetition in the future activities. The weakness of this solution consists in the fact that so far the Ombudsman has not been able, due to his heavy workload, to check systematically whether the administration takes heed of these critical remarks in future cases. The European Parliament has also recently highlighted this problem. It is hoped that the increase in the resources put at the disposal of the Ombudsman will allow the latter to tackle this problem.

Further remarks

In this context it should be noted that there are also cases where the Ombudsman comes to the conclusion that there was no apparent maladministration but where he considers that it would be desirable for the administration to improve its behaviour in the future. In such cases, the Ombudsman submits this advice to the administration in the guise of a further remark at the end of the decision closing the case. It is gratifying to see that the administration increasingly responds to these further remarks.

Draft recommendations

Where the Ombudsman finds an instance of maladministration that can still be remedied, he informs the administration accordingly. The Statute allows him to make proposals as to what the remedy could be. The Statute calls these proposals as "draft recommendations". They are launched in public. So far, the Ombudsman has made use of this possibility in 24 of the cases in which he conducted an in-depth inquiry. In 11 of these cases, the draft recommendations were accepted by the administration. Ten cases were still pending on 31 August 2000(2).

Special reports

Where the administration does not accept the Ombudsman's draft recommendations within three months or does not find an other acceptable way of undoing the maladministration, the Ombudsman is entitled to publicly submit a special report to the European Parliament and ask the latter to use its political powers to try and make the administration to undo the instance of maladministration. To this date, the Ombudsman has submitted three special reports to the European Parliament.
The first of these reports that was submitted in December 1997 concerned the issue of public access to documents held by 15 Community institutions and bodies other than the Council of the EU and the European Commission. The Community institutions and bodies concerned have now all adopted rules on public access to the documents held by them so the matter has been successfully closed.
The second report submitted in October 1999 concerned the Commission's refusal to grant candidates who had taken part in the recruitment procedures organised by the Commission access to their marked examination papers. In December 1999, the Commission informed the Ombudsman that it had now accepted the Ombudsman's arguments and would grant such access in future recruitment procedures.
Finally, the third special report that was submitted to the European Parliament in April 2000 concerned the Ombudsman's suggestion that the institutions and bodies of the EU adopt a Code of Good Administrative Behaviour. Like its two predecessors, this special report was adopted in the framework of an own-initiative inquiry of the European Ombudsman.

Own-initiative inquiries

This leads us to another important point. The European Ombudsman is empowered to receive complaints regarding instances of maladministration from European citizens. However, he is also entitled to open an inquiry of his own initiative. The Ombudsman has so far deliberately made sparing use of this possibility. Normally an own-initiative inquiry will be opened in cases where the Ombudsman has learnt from a number of complaints that there appears to be a more general problem.
The own-initiative inquiry into the problem of late payment, opened in December 1999, is a case in point. Over the years, the Ombudsman had received a number of complaints from companies and citizens who had provided services to the European Commission and who complained that they had not been paid at all or not in time.
The Ombudsman, therefore, decided to open an own-initiative inquiry dealing with the more general problem that appeared to exist. It should be added that the Ombudsman has also made use of the possibility to open an own-initiative inquiry in cases where there appeared to be maladministration but where the complainant did not have locus standi because he was not an EU citizen or did not live in the EU.

Other possibilities to influence the administration

Lastly, it should not be forgotten that the Ombudsman disposes of other means to try and influence the way in which the administration behaves. The Annual Report, for instance, provides the Ombudsman with the opportunity to make more general comments which, it is hoped, do not go unnoticed in the administration.
The Ombudsman may also give positive guidance to the administration as to what he considers to be good administration. In 1999, the Ombudsman completed an own-initiative inquiry that led him to propose a detailed Code of Good Administrative Behaviour to the institutions and bodies of the EU. A number of these bodies have now adopted this Code or codes that are based on the Ombudsman's proposal.
As mentioned above, the Ombudsman has submitted the matter to the European Parliament in a special report where he has proposed the enactment of a law on good administration for the EU. The European Parliament is still examining the issue.

Conclusion

In conclusion, it may therefore be submitted that the European Ombudsman disposes of sufficient tools to perform his task. It is of course for others to judge whether the European Ombudsman has been successful in his work. It may however be pointed out that the European Parliament, to which the Ombudsman has to submit his Annual Report, has so far constantly complimented the European Ombudsman on his achievements. The fact that the number of complaints is constantly increasing -from about 500 during the first full year to about 1500 last year - would appear to demonstrate that the European citizens are also confident that the European Ombudsman is able to help them.
It should be added that there are still a considerable number of complaints that fall outside the mandate of the Ombudsman, for instance because they are directed at bodies other than the institutions or bodies of the EU. The Ombudsman tries his best to assist complainants even in such cases. He therefore regularly provides information as to where the complainant could turn to in order to find help or he himself transfers the complaint to an institution (e.g. a national ombudsman) that can deal with it.
To conclude it is pertinent to indicate that the activities of the European Ombudsman are available in its constantly updated Website (http://www.ombudsman.europa.eu).

---

(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, OJ 1994 L 113, p. 15.

(2) The remaining three cases gave rise to a special report to the European Parliament.