Dear Mr M.,

On 12 March 2001 you made a complaint to the European Ombudsman against the European Parliament.

On 19 April 2001 I forwarded the complaint to the President of the European Parliament, requesting an opinion by 31 July 2001. The European Parliament sent its opinion on 25 September 2001. I forwarded it to you with an invitation to make observations, which you sent on 22 October 2001.

On 15 November 2001, my services contacted you concerning the possibility of a friendly solution to your complaint. On 16 November 2001, as requested by my services, you sent by fax a copy of a document relating to the proposed friendly solution. On 7 December 2001, I wrote to the President of the European Parliament to propose a friendly solution to your complaint. On the same day, I informed you of this action by letter. On 13 March 2002, the President of the European Parliament replied to the proposal and I forwarded the reply to you on the same day. On 24 March 2002, you sent me your observations on the European Parliament's reply.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, who was formerly Director General of DG XXIII (Enterprise Policy, Trade, Tourism and Social Economy) of the Commission, the relevant facts are as follows.

In 1993, the complainant began an internal investigation into allegations of corruption made against the head of the tourism division of DG XXIII, who has since been tried and convicted in France for corruption. This person then launched a disinformation campaign against the complainant. Elements of this disinformation found their way into a report (rapporteur R. WEMHEUER) which was adopted by the European Parliament, without the complainant having been heard. After correspondence with the European Parliament, the complainant considered that the matter had been satisfactorily resolved by the then President of the Parliament. Subsequently, however, the European Parliament established the Committee of Independent Experts, which examined amongst other things, the so-called "tourism affair". The European Parliament failed to supply to the Committee of Independent Experts its correspondence with the complainant concerning the Wemheuer report. As a result, the Committee of Independent Experts mistakenly assumed that elements of the Wemheuer report critical of the complainant were uncontested and, in its own report, blamed the complainant for failure to exercise his responsibilities without hearing him.

On the basis of the above, the complainant alleged that the European Parliament:

1 negligently failed to supply to the Committee of Independent Experts certain relevant information: i.e. the correspondence between himself and the European Parliament concerning the Wemheuer report;

2 is responsible for the violation of his fundamental right to be heard in the tourism affair.

The complainant claimed that the European Parliament should now publish a rectification, or alternatively a rejoinder both in print and on the website of the European Parliament.

THE INQUIRY

The European Parliament's opinion

In its opinion, the European Parliament made, in summary, the following points:

The Committee of Independent Experts was itself exclusively responsible for the interpretation of its mandate and for the manner in which it drew its conclusions. It met in camera and always insisted that its deliberations remain confidential in order to guarantee its independence.

The President of the European Parliament has no way of knowing which documents the Committee of Independent Experts scrutinised, nor their sources, nor what contacts were established between the experts and third parties, nor the reasons and conclusions which led the Committee to draw whatever conclusions it did draw.

The Parliament's institutional position therefore precludes it from answering any question of substance as regards the Committee's working methods, its sources and assessment of information, the merits of its conclusions or the manner in which they were expressed in the Committee's report. Accordingly the Parliament is not competent to answer the question of whether the Committee of Independent Experts respected the complainant's fundamental rights.

As regards the supply of information by the European Parliament to the Committee of Independent Experts, all the information which the Administration possessed relating to the Wemheuer report on tourism was made available to the Committee. However, the Parliament can give no opinion as to whether third parties forwarded information to the Committee, such as an exchange of letters between MEPs and the complainant, or any other information held in a personal capacity by a third party.

The President of the European Parliament informed the chairman of the Committee of Independent Experts, Mr MIDDLEHOEK of her letters to the complainant, most of which were written after the Committee had concluded its work. Furthermore the Secretary General of the European Parliament took the initiative to ask the former members of the Committee of Independent Experts to undertake an additional analysis of the arguments and documents put forward by the complainant. That request was refused on the grounds that the Committee of Independent Experts no longer existed and was therefore incapable of deliberating.

As regards the complainant's claim that the European Parliament should publish a rejoinder on the website of the European Parliament, since Parliament has no responsibility for the substance of the Committee's reports it can hardly feel obliged to publish any and every objection to those statements.

The complainant's observations

In his observations, the complaint made, in summary, the following points:

The European Parliament's opinion failed to address the central issue of whether the Parliament had respected the complainant's fundamental rights. The Parliament cannot delegate its obligations concerning the respect of fundamental rights to a temporary private body which is responsible only to itself.

The formulation of the mandate of the Committee of Independent Experts was entirely the responsibility of the European Parliament. The Parliament was competent to control the Committee's working methods, as is made clear by the Terms of Reference adopted by the Conference of Presidents of Political Groups on 27 January 1999. The fact that the Secretary General of European Parliament took the initiative mentioned in the Parliament's opinion demonstrates the European Parliament's competence in the matter.

The complainant's letters to the rapporteur, to the President of the responsible Committee, to the Presidents of Political Groups and to the President of the European Parliament should have been made available to the Committee of Independent Experts. These letters were addressed to the holders of official functions in the European Parliament and cannot therefore be equated to information held in a "personal capacity by a third party", regardless of whether the Parliament's Administration was aware of them.

By its own admission, the European Parliament did not transmit the complainant's correspondence to the Committee of Independent Experts and neglected its oversight role. Redress in the form of a review of the relevant passages of the Committee's report is therefore called for. Alternatively, the European Parliament should also publish the complainant's replies to the Committee's first report.

The complainant concluded his observations by asking whether the maze of mutually exclusive arguments about competence would not make any citizen feel like Josef K. in Kafka's The Trial.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and observations, the Ombudsman considered that there could be an instance of maladministration by the European Parliament. In accordance with Article 3 (5) of the Statute(1), he therefore wrote to the President of the European Parliament to propose a friendly solution on the basis of the following analysis of the issues in dispute between the complainant and the European Parliament.

1 The allegation of negligence

1.1 The complainant alleged that the European Parliament negligently failed to supply information to the Committee of Independent Experts about his correspondence with office holders of the Parliament concerning the Wemheuer report on tourism. For the avoidance of doubt, the Ombudsman points out that he does not understand the complainant to allege that any specific individual or individuals are to blame for this failure.

1.2 In its opinion, the European Parliament stated that all information which the Administration possessed relating to the Wemheuer report was made available to the Committee of Independent Experts. However, the Parliament stated that it could give no opinion as to whether third parties forwarded information to the Committee, such as an exchange of letters between MEPs and the complainant, or any other information held in a personal capacity by a third party.

1.3 In his observations, the complainant points out that his letters were addressed to office holders in the European Parliament and cannot therefore be equated to information held in a "personal capacity by a third party", regardless of whether the Parliament's Administration was aware of them.

1.4 The Ombudsman considers that it was incumbent upon the Parliament as an institution to take appropriate corrective action, within its competence, once it became known that relevant information and documents acquired by the European Parliament's office holders in their official capacity had not been communicated to the Committee of Independent Experts. Whether the Parliament has complied with this obligation is examined in the next part of the decision.

2 The alleged violation of the complainant's fundamental right to be heard

2.1 The complainant alleged that the European Parliament is responsible for the violation of his fundamental right to be heard in the tourism affair. According to the complainant, the Parliament's failure to supply the Committee of Independent Experts with correspondence between himself and office holders of the Parliament concerning the Wemheuer report resulted in the Committee mistakenly assuming that elements of that report critical of the complainant were uncontested. In its own report, the Committee of Independent Experts therefore blamed the complainant for failure to exercise his responsibilities without hearing him. The complainant claimed that the European Parliament should now publish a rectification or, alternatively, his rejoinder.

2.2 In its opinion, the European Parliament argued that the Committee of Independent Experts was itself exclusively responsible for the interpretation of its mandate and for the manner in which it drew its conclusions. According to the opinion, the European Parliament has no way of knowing which documents the Committee scrutinised, nor their sources, nor what contacts were established between the experts and third parties, nor the reasons and conclusions which led the Committee to draw whatever conclusions it did draw. The Parliament is not, therefore, competent to answer the question of whether the Committee of Independent Experts respected the complainant's fundamental rights.

2.3 The Ombudsman considers that the European Parliament has not satisfactorily addressed the question of its own responsibility for ensuring respect for the complainant's fundamental rights.

2.4 The Ombudsman's finding in paragraph 1.4 above is that it was incumbent upon the Parliament as an institution to take appropriate corrective action, within its competence, once it became known that relevant information and documents acquired by the European Parliament's office holders in their official capacity had not been communicated to the Committee of Independent Experts.

2.5 According to the European Parliament, the Secretary General of the European Parliament took the initiative to ask the former members of the Committee of Independent Experts to undertake an additional analysis of the arguments and documents put forward by the complainant. That request was refused on the grounds that the Committee of Independent Experts no longer existed and was therefore incapable of deliberating.

2.6 The Ombudsman considers that the European Parliament did, therefore, attempt to take appropriate corrective action. However, since that attempt failed to achieve its objectives, the Ombudsman does not consider that the European Parliament has thereby discharged its institutional obligation to take corrective action. The Ombudsman's provisional conclusion, therefore, is that the European Parliament should take further steps to discharge its institutional obligation to take appropriate corrective action, within its competence, and that failure to do so could be an instance of maladministration.

The proposal for a friendly solution.

The Ombudsman informed the President of the European Parliament, of the above findings and recalled that Parliament had argued that, since it has no responsibility for the statements contained in the reports of the Committee of Independent Experts, it can hardly feel obliged to publish any and every objection to those statements. The Ombudsman pointed out that the present case concerns not any and every objection, but the objection of a specific individual who was not heard before being subject by the Committee of Independent Experts to public criticism, which the Parliament continues to publish on its website. The Ombudsman proposed that appropriate corrective action could be for the Parliament also to publish the complainant's rejoinder on its website.

The European Parliament's response

In reply to the Ombudsman's proposal, the President of the European Parliament agreed, as a gesture of goodwill to the complainant, to allow him to publish his replies to the relevant chapter of the first report of the Committee of Independent Experts via a hyperlink from the relevant page on the European Parliament's website in its different language versions. The European Parliament did not undertake to translate the complainant's replies, but to publish, in the form specified above, all the language versions he supplies in a suitable format.

The European Parliament emphasised that this agreement is given without prejudice to Parliament's position of principle that it cannot be held responsible for the contents of the reports of the Committee of Independent Experts or for the manner in which the Committee conducted its work, the information on which it based its conclusions, nor its relations with persons actually or potentially concerned by its inquiries. Moreover, the European Parliament emphasised that it cannot be expected to provide a "notice-board", open to all, where arguments in which it has no part and the merit of which it cannot assess are published. Agreement to publish the complainant's replies cannot therefore be taken as a precedent of any sort for further publication of material in its website, either in respect of the Report of the Committee of Independent Experts or in any other context.

The European Parliament proposed to contact Mr M.once it had received the Ombudsman's confirmation that it may proceed on this basis.

The complainant's observations

The complainant confirmed by letter that he is able to acquiesce in the arrangements outlined in the reply from the President of the European Parliament to the Ombudsman's proposal for a friendly solution and looked forward to the European Parliament contacting him to discuss the implementation of the friendly solution.

THE DECISION

1 The allegations of negligence and of violation of the complainant's fundamental right to be heard

1.1 The complainant alleged that the European Parliament is responsible for the violation of his fundamental right to be heard in the tourism affair. According to the complainant, the Parliament's negligent failure to supply the Committee of Independent Experts with correspondence between himself and office holders of the Parliament concerning the Wemheuer report resulted in the Committee mistakenly assuming that elements of that report critical of the complainant were uncontested. In its own report, the Committee of Independent Experts therefore blamed the complainant for failure to exercise his responsibilities without hearing him. The complainant claimed that the European Parliament should now publish a rectification or, alternatively, his rejoinder.

1.2 The Ombudsman considers that it was incumbent upon the Parliament as an institution to take appropriate corrective action, within its competence, once it became known that relevant information and documents acquired by the European Parliament's office holders in their official capacity had not been communicated to the Committee of Independent Experts. The Ombudsman further considered that the European Parliament did attempt to take appropriate corrective action. However, since that attempt failed to achieve its objectives, the Ombudsman did not consider that the European Parliament had thereby discharged its institutional obligation to take corrective action. The Ombudsman's provisional conclusion, therefore, was that the European Parliament should take further steps to discharge its institutional obligation to take appropriate corrective action, within its competence, and that failure to do so could be an instance of maladministration. The Ombudsman therefore proposed as a friendly solution that the European Parliament publish the complainant's rejoinder on its website.

1.3 In reply to the Ombudsman's proposal, the European Parliament, whilst reserving its position on the substance, agreed as a gesture of goodwill to the complainant to allow him to publish his replies to the relevant chapter of the first report of the Committee of Independent Experts via a hyperlink from the relevant page on the European Parliament's website in its different language versions. The complainant confirmed his acceptance of the arrangements outlined by the European Parliament and looked forward to the Parliament contacting him to discuss the implementation of the friendly solution.

2 Conclusion

Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been agreed between the European Parliament and the complainant. The Ombudsman therefore closes the case.

The President of the European Parliament will also be informed of this decision.

Yours sincerely

 

Jacob SÖDERMAN

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(1) "As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint."