Speech by the European Ombudsman, Mr P. Nikiforos Diamandouros, to the Committee on Petitions of the European Parliament, Brussels, 11 October 2005

Introduction

Mr. President, this is an historic occasion. To my knowledge, it is the first time that the European Ombudsman appears before the Committee on Petitions of the European Parliament at his own request, in accordance with Rule 195 (3) of Parliament's Rules of Procedure.

I would like to thank you and all the Members of this Committee for agreeing to my request to put on your agenda today the special reports that I have presented to Parliament following my inquiries into two cases and for giving me the opportunity to speak about these reports.

It seems useful to begin with a general explanation of the purpose and significance of the Ombudsman’s special reports.

The purpose and significance of the Ombudsman’s special reports

As was pointed out in t he European Ombudsman’s annual report for 1998, the possibility to present a special report to the European Parliament is of inestimable value for the Ombudsman’s work.

The reason why special reports are so important is that they are, so to speak, the Ombudsman’s ultimate weapon.

The institution of the ombudsman, as it has spread throughout Europe and indeed the world, has no power to make legally binding decisions.

This should not be seen as a weakness.

An ombudsman ought to have the strongest possible powers of investigation, in particular an unfettered legal right to inspect files, but the power to make legally binding decisions, or to impose sanctions, would radically alter the nature of the institution.

Where the rule of law prevails, the citizen who wants a legally binding decision about his or her rights and obligations can go to court.

Without the power to make legally binding decisions, an ombudsman’s procedures can be more flexible than those of a court, thus providing citizens with a genuine choice between a judicial and a non-judicial remedy, each with different characteristics and advantages.

An ombudsman relies on persuasion, on the ability to convince through reasoned argument and, from time to time, on publicity and the force of public opinion.

The extremely small number of special reports that the European Ombudsman has presented to Parliament is evidence of a co-operative approach by the Community Institutions and bodies in the overwhelming majority of cases.

Part of the background to that co-operation, however, is the existence of the power to make a special report to Parliament. Especially when a draft recommendation is made, the knowledge that the next step could be a special report often helps the Ombudsman to persuade the Institution or body concerned to alter its position.

When a special report is presented to the European Parliament, which is the Union’s only directly-elected democratic Institution, the Ombudsman’s reasoned arguments receive publicity and Parliament can help convince the institution or body concerned to accept those arguments.

Special reports should therefore not be presented too frequently, but only in relation to important matters, on which Parliament could help persuade the institution or body concerned to alter its position.

Twelve special reports in ten years

In the ten years since the European Ombudsman was established, twelve special reports have been presented. The first was in 1997. Since then, they have been presented at the rate of one or two per year, with the exception of the years 1998 and 2003, when none was presented.

This year, for the first time, I have submitted three special reports to Parliament. No significance should be attached to this increase. It does not represent any change of policy by the Ombudsman. Nor can it be interpreted, given the very small absolute number of special reports, as indicating worse behaviour by the Institutions and bodies. Most likely, it reflects the overall rise in the number of inquiries.

As a political body, the European Parliament is sovereign in dealing with the Ombudsman’s special reports, as regards both its procedures and the substance of its approach and actions.

I do hope, however, that, when considering a special report, Parliament will always take into account that the right to apply to the Ombudsman, alongside the right to petition the European Parliament, is a fundamental right of citizenship. For the reasons I have explained, special reports and Parliament’s response to them are the very keystone of the arch that supports the Ombudsman’s work.

The first six special reports presented to the European Parliament all led to Resolutions supporting the Ombudsman’s findings and recommendations, on the basis of reports made by the Committee on Petitions. The last of these six reports was presented to Parliament nearly four years ago, on 30 November 2001.

Supervening events made it unnecessary for this Committee to act as regards either of the two special reports presented during the year 2002.

One of those reports concerned a case that involved the European Parliament itself. The President of Parliament accepted the recommendation in the special report soon after it had been presented. This was obviously a fully satisfactory outcome and any further action would have been superfluous.

In the other case, after the special report had been presented, a member of the European Parliament launched proceedings in the Court of First Instance which raised the same issue of legal principle. I informed this Committee of the legal proceedings and, in the light of that information, the Committee chose not to appoint a rapporteur. The issue of legal principle was subsequently clarified by the judgement of the Court of First Instance(1).

The reports of 2002 were, however, quite exceptional. Normally it is vital for the work of the Ombudsman that Parliament should take a position as regards the recommendations contained in a special report, usually through appointing a rapporteur and adopting a Report with a motion for a Resolution.

Mr President, it has been brought to my attention that some members of this Committee have expressed the wish to have more frequent contact with the Ombudsman. It seems to me that the presentation of a special report to the European Parliament is an occasion when direct contact between this Committee and the Ombudsman could be of great value in promoting the rights and interests of European citizens.

For this reason, whenever I present a special report in the future, I shall make a request to appear before this Committee, in accordance with Rule 195 (3) of Parliament's Rules of Procedure.

Today, I have asked the Committee to give me the opportunity to present it with the two most recent special reports.

Before doing so, however, I wish to note briefly that, there are also two older special reports which have yet to be dealt with by Parliament.

The older of the two was presented to Parliament last year, on 20 December 2004, following my own-initiative inquiry OI/2/2003. I understand that this Committee intends to refer to the matter in its Report and motion for a Resolution on the Ombudsman’s annual report for 2004.

I am also aware from the Press of this Committee’s on-going efforts to obtain authorisation to deal with the special report following the inquiry into complaint 2485/2004, which I submitted to Parliament five months ago on 12 May 2005.

I shall make no comment on a matter that is for Parliament to determine.

In view of the tenor of certain Press coverage, however, I would like to emphasise that, in my understanding, the role of this Committee in relation to special reports is political not judicial. The citizen who complains to the Ombudsman invokes a non-judicial remedy, in relation to which Parliament has a vital role to play in helping to persuade the institution or body concerned to alter its position, if necessary.

1391/2002/JMA

I turn now to the special report that I presented to Parliament on 27 May this year, following my inquiry into case 1391/2002 and 21 other similar complaints against the Commission.

The complainant in case 1391/2002 works for the Commission. She has a daughter with special educational needs that cannot be met by the European Schools.

Education in the European Schools is provided free of charge to the staff of the Community institutions and bodies. Since the European Schools are unable to cater for her daughter, the complainant must send the child to a different school and pay part of the cost of her education.

My inquiry showed that the integration of disabled children into the ordinary education system is a policy goal of the European Commission which, however, lacks a mandatory character to date. Furthermore, there is considerable divergence among the laws and practices of the Member States in this regard.

Against this background, I took the view that the Commission had offered a reasonable explanation as to why the European Schools cater for only some children with special educational needs, while children with a more severe degree of disability are not integrated into the Schools.

I was not convinced, however, that the Commission had adequately explained the financial aspects of the matter. In the absence of such an explanation, I found unjustified discrimination in the different financial treatment of staff whose children attend a European School, as compared to staff whose children who attend other schools because of their degree of disability.

I therefore made a draft recommendation to the Commission that it should take the necessary steps to ensure that parents of children with special educational needs who are excluded from the European Schools because of their degree of disability should not be required to contribute to the educational costs of their children.

The Commission’s detailed opinion expressed willingness in principle to review the current policy, subject to budgetary constraints which could be tackled in the 2006 budget. Although encouraging, this did not amount to an unequivocal acceptance of the draft recommendation.

I therefore thought it appropriate to make a special report to the European Parliament, containing a recommendation in the same terms as the earlier draft recommendation.

Several months have passed since the Commission submitted its detailed opinion and the 2006 budgetary procedure is now at an advanced stage. In these circumstances, the Committee might think it advisable, in the framework of its handling of the special report, to seek updated information from the Commissioner responsible concerning progress in the matter.

2395/2003/GG

The most recent special report was presented to the European Parliament last week, on 4 October. The report follows my inquiry into a complaint made in December 2003 by a Member of the European Parliament.

The complaint concerned the question as to whether the Council should meet publicly whenever it acts in a legislative capacity. At present, the extent to which such meetings are public is limited by the Council's own internal Rules of Procedure.

All that needs to be done in order to open all such meetings to the public would be for Council to amend its Rules of Procedure.

The Council argued that the complaint does not fall within the Ombudsman's mandate. In substance, its position appears to be that the degree of openness of its meetings is a political choice to be made by the Council.

In my view, the Council’s position is difficult to reconcile with Article 1 (2) of the Treaty on European Union, which establishes a general principle that the Council and the other Community institutions and bodies must take decisions “as openly as possible”.

It is true that Article 207 of the EC Treaty provides for the Council to adopt its own Rules of Procedure, but it does not provide that the degree to which the meetings of the Council in its legislative capacity are to be open to the public should be regarded as a political choice and left to the discretion of the Council.

I therefore continue to believe that the complaint falls within my mandate.

The Council also took the view that Article 1 (2) of the Treaty on European Union should be regarded as a programmatic provision, indicating that the future Union should be as open as possible.

In its present form, Article 1 (2) was introduced by the Treaty of Amsterdam, which was signed on 2 October 1997 and entered into force in 1999.

I take the view, however, that developments since the Treaty of Amsterdam should be taken into account. In particular, it is important to note that the Council itself adopted new Rules of Procedure in the year 2000 that provided for increased openness of its meetings as a legislator.

The Council thus made clear that steps to increase the transparency of its legislative activity had to be taken and could be taken. The adoption of the new Rules of Procedure in 2000 also confirms that doing so was and is possible under the existing Treaties and Community law as it presently stands.

My inquiry into the complaint gave the Council the opportunity to submit reasons as to why it would be unable to amend its Rules of Procedure with a view to opening up the relevant meetings to the public.

In my view, the Council did not put forward, either in its original opinion, or in its detailed opinion on a draft recommendation, any valid reasons for not doing so.

I have therefore presented a special report to the European Parliament in which I make the following recommendation to the Council:

“The Council of the European Union should review its refusal to decide to meet publicly whenever it is acting in its legislative capacity.”

I have also invited the European Parliament to consider adopting the recommendation as a resolution.

Mr President, I trust that this first occasion of meeting with the Committee in relation to special reports has been useful for you and your colleagues.

I would also like to thank you and the members of the Committee for your attention today and I look forward to hearing your views.

---

(1) Case T-84/03, Maurizio Turco v Council, Judgement of 23 November 2004 (not yet reported).