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'Good Administration in the European Union: the role of the European Ombudsman', Speech by the European Ombudsman, Mr P. Nikiforos Diamandouros, to the Heads of External Delegations of the European Commission, Brussels, Belgium, 12 September 2007
Speech - Speaker P. Nikiforos Diamandouros - City Brussels - Country Belgium - Date Wednesday | 12 September 2007
I am delighted to have this opportunity to present to you the role of the European Ombudsman, and to exchange views with you on how the Ombudsman can help you in your work.
One of the key tasks which I see for the European Ombudsman is to reach out as much as possible to the institutions and other bodies of the European Union, and to companies, associations, or citizens who have contact with European institutions or bodies, to explain to them about my work and to generate knowledge of and trust in the Union's administration.
The Ombudsman is not only an external mechanism of control, but also a source of information and a rich resource upon which the administration can draw upon to help raise the quality of its operation and performance and improve relations with citizens.
In pursuit of this goal, I have met with the College of Commissioners, with the Director Generals of the Commission, with the Delegations of the Commission whenever I visit a member state, and with the external Representations in candidate countries, as well as participating in many seminars and conferences organised by the Commission.
The main message that I wish to convey to you today is that complaints to the Ombudsman should be seen as an opportunity, not as a threat - and that, consequently, the Ombudsman and the European institutions and bodies can act in partnership to improve the quality of administration and enhance relations with citizens.
The message that complaints are an opportunity not a threat may sound to you like an empty slogan. It is not. I mean it.
To try to persuade you of this, I will first speak briefly about the principles underpinning ombudsman institutions generally.
I shall then explain how my activities as European Ombudsman complement those of the Courts, both in reacting to complaints and by being proactive in a number of ways.
Finally, I shall shift perspective and try to look at my work from the standpoint of European institutions and bodies.
2 What is an Ombudsman?
An ombudsman is an independent, external mechanism dealing with complaints against public authorities.
The world’s first ombudsman was established in Sweden in 1809.
During the second half of the twentieth century, the institution spread globally. In some countries, the ombudsman is seen primarily as a way of making public bureaucracies more responsive to citizens. In others, the main focus is on human rights.
Unlike a court, an ombudsman normally has no power to make legally binding decisions. The institution is “une magistrature d’influence”. That is to say, its authority is moral and its effectiveness depends on being demonstrably impartial and non-partisan, so as to deserve, and win, the confidence of both complainants and the administration.
This is the rationale for independence constituting an indispensable part of the architecture of the ombudsman institution. In constitutional systems where parliamentary scrutiny of the Executive is well-developed, such independence is often secured by a privileged relationship with the legislature.
The fact that an ombudsman can only persuade, not compel, makes it possible for the institution to complement the courts in a number of ways.
Specifically, in reacting to complaints, an ombudsman can apply broader review criteria, be more accessible, and use more flexible procedures than a court.
An ombudsman can also be proactive in ways that are not possible for a court.
I will explain these points with specific reference to my own institution, the European Ombudsman.
3 The European Ombudsman
The European Ombudsman was created by the Treaty of Maastricht, which established Union citizenship.
One of the rights of citizens of the Union is to complain to the Ombudsman about maladministration in the activities of the EU Institutions and bodies, with the exception of the Courts when acting in their judicial role.
As I have explained, independence is vital to my credibility as an Ombudsman. In my case, a key institutional guarantee of independence is that I am elected by the European Parliament and address my reports to Parliament.
I make inquiries into possible maladministration on the basis of complaints from citizens and residents of the Union, from businesses and other organisations registered in the Union, or on my own initiative.
The complaints that I receive concern nearly the whole range of activities of the Union institutions and bodies, but five subjects tend to recur most frequently.1 Failure to answer correspondence
Normally, the easiest complaints to resolve are those about failure to answer correspondence. In most cases, my staff succeeds in obtaining an answer promptly from the institution or body and the case is then closed as settled.
If the complainant is not satisfied with the substance of the answer, he or she has the opportunity to come back with a new complaint.2 Lack of transparency
Complaints about lack of transparency are the biggest single category, representing about 25% of total inquiries.
Most such complaints concern the way that the Commission or the Council apply Regulation 1049/2001 on access to documents.
Transparency includes access to information as well as to documents.
Communicating with citizens in their own language is also an aspect of transparency. I receive an increasing number of complaints on this subject, to which I will return later.3 The Commission's role in investigating possible unlawful activities
The third category of complaints consists of those concerning the Commission’s investigations into possibly unlawful activities.
Such complaints mainly come from persons who have complained to the Commission about an infringement by a Member State and who are dissatisfied with the Commission’s handling of the matter.
However, there are also complaints about anti-trust and anti-dumping procedures, as well as an increasing number of complaints against the European Anti-Fraud Office OLAF.4 Contracts and grants
Another large category consists of complaints about the way contracts and grants are awarded, or the performance of obligations under a contract, or a grant agreement.
Many such cases begin with an allegation of failure to pay.
In some cases, the inquiry shows that the problem is administrative delay in making a payment that is clearly due.
In other cases, the real issue turns out to be a dispute, either about the adequacy of the contractor or grant-holder’s performance, or about compliance with financial reporting and audit requirements.
In the case of an allegation of breach of contract, I limit my inquiry to examining whether the Community institution or body has provided a coherent and reasonable account of the legal basis for its actions and of the reasons why it believes that its view of the contractual position is justified.
An important point that I would like to emphasise is that, when a dispute arises as a result of a contract, it is not enough for the Commission to say “we are not a party to the contract”. That fact is relevant, but it does not relieve the Commission of its general duty to act fairly and reasonably, for example towards subcontractors and the experts recruited by subcontractors. I will develop this point in more detail later.5 Personnel matters
Finally, there are complaints about personnel matters. This category includes both complaints from existing staff and complaints about the recruitment of new staff.Relex
Cases concerning RELEX touch upon an array of issues including failure to reply to citizens, claims for compensation, problems encountered within the framework of calls for tender, late payments, respect for the human rights clause, and personnel matters, including recruitment. There are also issues relating to consulting firms and potential employees of these firms, or their subcontractors.
4 The Ombudsman as an alternative to the courts
As I mentioned earlier, an ombudsman’s role is to persuade, not to compel.
In the context of the European Union, that makes it possible for me to complement the Community Courts by providing an alternative way of resolving disputes that has more flexible procedures, is more accessible and applies a broader review criterion. I will explain these points, beginning with procedures.4.1 Flexible procedures
Making a complaint to the Ombudsman opens up the possibility of reaching a solution acceptable to both sides.
The institution or body may take the initiative to settle a complaint, sometimes with encouragement from me, as with cases about unanswered correspondence and other cases where I see an opportunity to facilitate a rapid resolution of the problem.
When my inquiry shows that that there could be maladministration, I try to achieve a friendly solution, if possible.
By definition, a friendly solution is an outcome that satisfies both the complainant and the institution or body against which the complaint is directed.
In practice, I either formulate a concrete suggestion that I believe could be acceptable to both the institution and the complainant, or invite the institution itself to make a reasonable proposal.
In some cases, a simple apology may help to improve relations with the complainant, or even satisfy him or her completely. Even if that is not the case, the fact that the institution or body has volunteered a sincere apology in an isolated case of maladministration, with no systemic implications, often leads the Ombudsman to decide that no further inquiries are justified.
Apologising is not always easy, not least because lawyers sometimes worry that an apology could be understood as an admission of fault and imply liability in damages.
In some common law jurisdictions, legislation specifically provides that an apology by a public body shall not be construed as an admission of liability.
I applaud the idea behind such legislation, but I am persuaded that, even in its absence, an apology for many administrative errors can be given without the risk of liability. After all, errors inevitably occur in any administration and to acknowledge and correct an error is not necessarily to admit fault.
When the complainant has suffered material loss, I sometimes propose that a reasonable offer of compensation be made. Naturally, any such offer is made ex gratia: that is, without admission of legal liability and without creating a precedent.
I say “naturally” because the question is not whether the complainant could have obtained damages by going to court, but how to rectify a case of maladministration by giving an institution an opportunity to set things right on its own initiative.
When an institution or body accepts a proposal for a friendly solution, I always try to present the case publicly in as positive a way as possible.4.2 Accessibility
As regards accessibility of the Ombudsman, there is no financial cost involved in making a complaint and no need to be legally represented.
Furthermore, complaints to the Ombudsman can be made in many situations where it would not be possible to bring an action for annulment before the Court. Let me give you two examples to illustrate the point.
In October 2005, I made a Special Report to the European Parliament concerning the openness of the Council’s legislative meetings.
Last year, I made another Special Report to Parliament about the choice of languages on the Council Presidency websites.
It is difficult to imagine how the complainants could have brought proceedings about either of those subjects before the Community Courts.4.3 The review criterion: “maladministration”
Turning now to the criteria that the Ombudsman applies, the Treaty tells me to inquire into “ maladministration”, but does not explain what it is.
In 1996, the European Parliament asked for a definition and the Ombudsman offered the following: “maladministration occurs when a public body fails to act in accordance with a rule or principle that is binding on it”.
In practice, three kinds of failure may give rise to a finding of maladministration:
- failure to respect a legal rule or principle;
- failure to respect the principle of good administration;
- failure to respect human or fundamental rights.
The requirements of good administration include:
- Acting fairly and reasonably;
- Acting carefully;
- Acting consistently and in accordance with established policies;
- Taking into account and balancing all the interests involved;
- Avoiding unnecessary delay;
- Being courteous and helpful, as well as sensitive to individual circumstances, needs and preferences;
- Acknowledging errors and taking action to put the matter right;
- Being open and transparent; and
- Seeking continuous improvement.
There is a high degree of overlap between legal rules and principles and the principles of good administration.
However, they are not completely identical, because good administration is based on the idea that the administration exists to serve citizens. An institution in which there is a culture of service to citizens will, of course, respect legal rights, but it will also seek to do more than just avoid illegality.
That implies that, whilst an unlawful act is always maladministration, the converse is not true: there may be maladministration even if the institution or body has not acted unlawfully. Or, as I like to put it, there is “ life beyond legality”.
One of the instruments that I use to promote a culture of service is the European Code of Good Administrative Behaviour. If you look into the Code, you find legal rights and principles, such as proportionality, the right to be heard, and legitimate expectations.
You also find fairness, reasonableness, helpfulness and courtesy. Those are not necessarily legal obligations, as such, but they do form an essential part of a culture of service.
Similar provisions exist in the codes adopted by the European Parliament, the Council and Commission.
In fact, it would be surprising if the principles of good administration were not the same across the range of Union institutions and bodies.
5 The proactive work of the Ombudsman
Let me turn now from the reactive function of dealing with complaints, to the proactive side of my work.
In fact, as I shall explain, there is a strong synergy between the reactive and the proactive modes.5.1 Further remarks
For example, if my inquiry into a complaint reveals an opportunity for the institution or body to improve the quality of its administration in the future, I draw attention to it in my closing decision, through what is called a “ further remark”.5.2 Own-initiative inquiries
As I mentioned earlier, the Treaty empowers me to conduct inquiries on my own initiative as well as in response to complaints. The own-initiative inquiry is another important proactive instrument.
One of the purposes for which I use such inquiries is to investigate possible systemic maladministration. Here again, there is strong synergy between the reactive and proactive modes, because a series of complaints on the same subject often provides the first hint that there could be a systemic problem.
Some systemic own-initiative inquiries concern a specific institution or body, usually the Commission. Others concern issues of principle affecting all the institutions and bodies.
I am also seeking to spread best practice by highlighting in my Annual Report a number of “star cases”, which demonstrate that the institutions and bodies concerned are sensitive to the need for a culture of service to citizens.5.3 Co-operation through the European Network of Ombudsmen
Another important aspect of my proactive work is close co-operation with ombudsmen in the Member States of which 25 have ombudsmen at the national level.
In Germany, the ombudsman function at the federal level is performed by the Committee on Petitions of the Bundestag, while in Italy there are ombudsmen only at the regional level.
We are all linked through the European Network of Ombudsmen.
The Network helps ensure that complaints are rapidly directed to the right ombudsman: the European Ombudsman for complaints against Union institutions and bodies and the relevant national, or regional, ombudsman for complaints concerning the application of EU law in the Member States.
The Network also shares information about developments in EU law and helps identify and spread best practice among the ombudsman Community in Europe.
The European Code of Good Administrative Behaviour is particularly important in this regard.
We have produced a new edition of the Code in 26 languages and have distributed over 100 000 copies throughout Europe and the rest of the World.
The Code has received wide recognition, in the Member States and candidate countries, in the Council of Europe and elsewhere and many ombudsmen in the Network use it as a resource to help enhance the quality of the administrations that they supervise.
It is, by any measure, a European success story and one on which we intend to build, in co-operation with the other members of the Network.
6 The dual role of the Ombudsman
I would now like to try to do something that is rather difficult, but also very important: that is, to put myself in the shoes of people on the receiving end of the Ombudsman’s activity.
Specifically, how does the Ombudsman look from your perspective?6.1 External control
To begin with, the Ombudsman is, of course, a form of external supervision. Responding to such external demands is resource-intensive and can seem like a distraction from other important management objectives.
In the case of the Ombudsman, there is an additional factor. By definition, complainants are people who are unhappy and dissatisfied. Someone who is favourably impressed by the quality of your work is unlikely to think of contacting the Ombudsman to praise you.
It is therefore not surprising if the Ombudsman is sometimes seen as the bearer of bad news, if not bad news tout court.
Let me assure you that I do sometimes get a positive picture of you, even through complaints. For example, one complainant alleged earlier this year that an institution had dealt with her correspondence in an “arrogant and inconsiderate” manner. I asked the complainant for a copy of the institution's letter and to me it seemed a perfectly reasonable and helpful reply. I therefore told the complainant that I found no grounds for an inquiry and did not trouble the institution with the matter.6.2 A resource for the external Representations
First however, I wish to stress the general point that, as well as being a form of external supervision, an ombudsman is also a resource for public sector managers, especially those who are trying to build an organisational culture that emphasises service to citizens and quality of output.
Viewed from this perspective, complaints can provide valuable insights to management. The information they contain enables managers to dig down into their organisations, focus on the quality of output from individual units and take corrective action if necessary.
Tackling the underlying causes of maladministration produces a double benefit: in addition to helping avoid future complaints, it also enables institutions to manage themselves more effectively and to achieve better results.
A complaint or an own-initiative inquiry also provides you with an opportunity to explain to citizens what you have done, to put right any shortcomings that may exist and to receive credit for that action.
I remain persuaded that making good use of such opportunities tends to enhance the legitimacy of the European Union's institutions and bodies in the eyes of the citizens.Alternative Dispute Resolution
There have been a number of complex cases involving RELEX, in which the dispute arose out of a contract, but the complainant had no contractual relationship with the Commission.
Some of these cases concerned the way in which the Commission exercised powers of control over a third party, who was employed by the responsible national authorities, or by a consultant who had a contract with the Commission. Other cases concerned the Commission’s handling of claims made to it regarding non-payment of sub-contractors.
My inquiries into these cases carefully reviewed the legal basis of the Commission's powers in order to assess whether it had acted reasonably.
The starting point was that Commission had no contract with the complainants and did not employ them. The Commission could not, therefore, be considered to have taken any formal contractual measures towards the complainants, let alone as having dismissed them). Even in cases where the Commission had rejected the qualifications or performance of an expert, formally speaking it had simply expressed criticism of the services rendered to it under a contract with a private company.
Under these circumstances, did the complainant have any procedural or substantive rights vis-à-vis the Commission, and did the Commission have any corresponding obligations? My findings have confirmed a degree of obligation on the part of the Commission, but without considering that the complainant has exactly the same rights as an individual who is directly affected by an administrative measure.
I did not, for instance, find that the complainants had a formal right to be heard, as that term is normally understood in administrative law. On the other hand , I have certainly considered that the Commission has to justify the very explicit and serious points of criticism expressed by its local advisers and to act fairly in relation to the third party criticised. That implies giving a reasoned explanation of its criticism and might also imply, in some cases, granting an opportunity to the person in question to correct the deficiencies detected.
Although the Commission naturally and properly draws attention to the fact that it does not have a contract with a complainant in such cases, I am pleased to note that it has not disputed the relevance or justifiability of my inquiry into possible maladministration, nor challenged the idea that good administration requires it to act fairly also towards third parties.
In my view, many such situations could be rendered less conflictual if the parties involved had access to alternative methods of dispute resolution ("ADR") at an earlier stage. Last year, I conducted an own initiative inquiry into alternative dispute settlement mechanisms, in which, among other things, I suggested that the Commission’s contracts could foresee the promotion of ADR and mediation in relations between the Commission's contractors and their subcontractors.
The Commission replied rather cautiously that it could only recommend that its contractors have recourse to ADR in their relations with their sub-contractors, but it is not in a position to impose such recourse.
However, given that the Commission can - and indeed does – insist in its contracts that it shall have rights to veto an expert's qualifications, or impose changes in the personnel of the contractor, I find it difficult to understand why it is not in a position strongly to suggest to its contractors the use of ADR in their disputes with subcontractors.6.3 Helping you communicate with citizens
The European Ombudsman can help Union institutions and bodies to communicate effectively with citizens, at both the micro and macro levels, thereby promoting greater trust.
At the micro level, complainants often genuinely benefit from the explanations they receive as a result of my inquiries.
For example, complainants not infrequently thank me for helping them understand and accept the way that an institution or body has handled their case, even though in one sense they have “lost” the case, because I found no maladministration.
This is a practical example of transparency at work. It illustrates both the benefits that transparency can bring and the fact that, to practice it successfully, requires the generation and careful nurturing within the institutions of a service culture centred on citizens.
At the macro level, I have already mentioned that I try to present friendly solutions in as positive a way as possible, sometimes in the form of a press release.
Last year, for example, the European Investment Bank (EIB) agreed to disclose parts of an audit report under its own rules on public access. In addition, it allowed the complainant's company to have private access to sections of the report that specifically concerned the group of companies to which the complainant belonged. I issued a press release welcoming the EIB's constructive approach in this case and pointing out that although privacy and commercial confidentiality are legitimate interests that may limit public access, the very person whose privacy or commercial interests are concerned should not be denied access on that ground.
Some years ago the Ombudsman’s decision closing the own-initiative inquiry on access to documents held by the ECB offered them advice on how to explain their decision not to publish the minutes of monetary policy meetings.
Their position at that time was that the scope of their rules on public access was confined to “administrative” documents and that the minutes were not “administrative”. That argument seemed to be based on the old idea that the basic principle of the Union is secrecy and that openness requires special rules.
We suggested as an alternative approach that rules should apply to all documents, but with defined exceptions to protect legitimate interests, such as monetary policy. The 2004 revision of the ECB's rules on public access adopts just that approach.
Taken together, the preceding thoughts and observations lead to the central conclusion that there is a genuine community of interest between us in ensuring that both the reactive and the proactive aspects of the Ombudsman’s work are successful.
I am ready to co-operate with you in the future to promote this community of interest and hope that you will choose to regard the work of my office not only as a mechanism of external control as provided by the EC Treaty, but indeed as a rich resource that is available to you.
Thank you very much for your attention.
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