REPORT on the annual activity report (1995) of the Ombudsman of the European Union (European Ombudsman) (C4-0257/96)

30 May 1996

Committee on Petitions
Rapporteur: Mrs Nuala Ahern

The committee responsible for the examination of the annual activity report of the Ombudsman of the European Union (European Ombudsman) hereby puts forward its report pursuant to Article 138e (1) of the Treaty on European Union and Article 3 (8) of the Regulations and General Conditions governing the performance of the Ombudsman's duties.

At its meeting of 19-20 March 1996 the Committee on Petitions appointed Mrs Nuala Ahern rapporteur.

The European Ombudsman, Mr Söderman, transmitted its report to the President of the European Parliament on 22 April 1996 and presented it to the Committee on Petitions at its meeting of 23-24 April 1996.

At its meetings of 6-7 May 1996 and 29-30 May 1996 the committee considered Mrs Ahern's draft report. At the latter meeting, it adopted the motion for a resolution unanimously with 1 abstention.

The following members were present: Newman, chairman; Ahern, vice-chairman and rapporteur; Banotti, Blak, Dillen, Dybkjaer, Gutiérrez Díaz, Miranda de Lage, Papakyriazis, Pex, Schmidbauer, Smith, Striby, Tamino and Toivonen.

The report was tabled on 30 May 1996.

The deadline for tabling amendments will appear on the draft agenda for the part-session at which the report is to be considered.

A. MOTION FOR A RESOLUTION

Resolution on the annual activity report (1995) of the European Ombudsman

The European Parliament,

- having regard to the Treaty establishing the European Community, and in particular Article 8 d, second paragraph, and Article 138e thereof,

- having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 20 d thereof,

- having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 107 d thereof,

- having regard to the Regulations and general conditions governing the performance of the Ombudsman's duties, adopted by the European Parliament on

9 March 1994, and in particular Article 3, paragraph 8 thereof[1],

- having regard to the decision by which the European Ombudsman was appointed by the European Parliament for its current term[2],

- having regard to the annual report of the European Ombudsman (1995)(C4-0257/96),

- having regard to the report of the Committee on Petitions (A4-0176/96),

A. whereas the European Ombudsman was appointed by the European Parliament on 12 July 1995 to improve relations between the European citizens and the institutions of the European Community and to protect the rights of European citizens against maladministration by the European Community bodies and institutions,

B. whereas the duties of the European Ombudsman, pursuant to the Treaty establishing the European Community, consist of investigating maladministration in the activities of the Community institutions and bodies,

1. Congratulates the European Ombudsman for the interesting and informative activity report for 1995;

2. Stresses that the report should be distributed as widely as possible, since it contains a clear and accurate description of the responsibilities of the European Ombudsman and therefore constitutes a precious indication for the citizens and residents who may want to address themselves to the European Ombudsman;

3. Believes that the combined action of the European Ombudsman and of the European Parliament on the complaints and petitions each receives will substantiate Articles 8d, 138d and 138e of the EC Treaty, which aim at setting up as complete and effective a system as possible for the citizens and residents to address themselves to the European Union for help in solving problems related to the life of the Union;

4. Undertakes to do all in its power in the future, through its Committee on Petitions, to cooperate with the European Ombudsman, assisting and guiding him in any difficulty arising from his dealings with Community institutions and bodies related to the complaints he receives:

5. Calls on all Community institutions and bodies, and in particular the Council and the Commission, to cooperate closely with the Ombudsman and, in particular, to place at his disposal the information and documents he requires for the effective performance of his duties;

6. Recalls that transparency and good administrative practice of the European institutions are a crucial issue at the Intergovernmental Conference on the revision of the Treaty on European Union and that it is of great significance to try and make progress towards a complete set of binding rules on a more open and democratic functioning of the European institutions along the lines established in the 1993 Code of Conduct concerning public access to Council and Commission documents [3];

7. Instructs its President to forward this resolution to all institutions and bodies of the Union and to the national ombudsmen, national petitions committees or bodies of a similar nature.

  • [1]  OJ No. L 113, 4.5.1994, p. 15
  • [2]  OJ No. C 249, 25.9.1995, p. 85
  • [3]  OJ L 340 (1993), p.41

B. EXPLANATORY STATEMENT

I. Time-span covered by the report

1. The report submitted to the Parliament refers to the calendar year 1995. Actually, since the European Ombudsman started his activity at the end of September, it refers to a period slightly longer than 3 months. Therefore, although the contents of the document should be the outcome of the Ombudsman's inquiries, the report correctly states that it is mainly concerned in describing the general rules governing the Ombudsman, the setting up of his Office, and the main decisions taken to deal with complaints. The structure of the report is thus very useful, since it allows Parliament to make early comments on the first decisions taken by the Ombudsman as regards his future activity.

2. According to the Treaty on European Union (Article 138 e, 1., last subparagraph), "the Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries".

The European Ombudsman's Statute ("Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties") prescribes, in its Article 3, paragraph 8, that the Ombudsman shall submit the report "at the end of each annual session".

Following a judgment of the Court of Justice in the 1960s, Rule 10 of the European Parliament's Rules of Procedure states that the session has an annual duration, starting on the second Tuesday in March each year.

3. It could be held that these texts place an obligation on the European Ombudsman to prepare reports covering a period of time equivalent to the parliamentary session (March of one year to March of the following). However, the decision taken by Mr Söderman to have reports covering each calendar year can be shared, since the European Ombudsman is a body independent from the Parliament and need not follow the parliamentary frequency. The question could be of some practical relevance only at the end of the five-year term of office of the European Parliament, and - in that perspective - the decision to have a report based on the activity for the calendar year is acceptable, since it still allows the outgoing Parliament to take a stance on the Ombudsman's report. After all, Article 3, paragraph 8, of the Statute of the European Ombudsman requires him to submit the report at the end of each annual session, not specifying the time-span to be covered by the report, thus imposing an obligation relating to the time of the presentation rather than to the strict contents of the report; indeed, the period of approximately three months between the end of the calendar year and the beginning of the parliamentary year can usefully be employed for the preparation of the report.

II. Contents of the report

4. The report contains an introduction on the European Ombudsman in general (Part I), data for 1995 - and indeed some data for the first three months of 1996 (Part II), and a conclusion by Mr Söderman.

The first part of the report is most useful, especially since it explains the conditions in which a complaint can be introduced and the procedural decisions made by the Ombudsman for dealing with complaints. Thus, the report illustrates

- who can complain (citizens or residents),

- against whom: the report contains (Part I, 3.3) the list of the 5 institutions and numerous bodies of the Community; to be noted that the European Ombudsman itself constitutes a further "body" of the Community, but thinking of an action brought against the European Ombudsman for maladministration would be a little far-fetched - although there are actions brought before the Court of Justice (now before the Court of First Instance) by officials of the Court complaining against decisions taken by the Court itself,

- about what: a definition of maladministration is wisely not attempted; the report sets out (Part I, 3.2) a non-exhaustive list of cases in which maladministration can occur,

- the procedure followed: complaints declared admissible and "prima facie" founded are communicated to the institution or body in question, which is asked to give a "first opinion"; once this has been considered, together with any comments by the complainant, a solution is sought between the two parties; if, after appropriate draft recommendations from the European Ombudsman, the instance of maladministration persists, the European Ombudsman reports to the European Parliament - as well as to the institution or body concerned.

This section also underlines the necessary independence of the European Ombudsman from all other bodies, as well as his powers in investigating complaints and the possibility of own initiative inquiries. In this respect, it is welcomed that the Ombudsman has created a register of complaints which is open to the public.

5. The second part contains the actual "report on the outcome of inquiries"; obviously, as explained above, no inquiry was finalized in 1995 since Mr Söderman only started his activity at the end of September. Annex A. mentions that three inquiries were satisfactorily finalized at the beginning of 1996, through an amicable solution reached directly between the institution concerned and the complainant.

In his final remarks, Mr Söderman briefly assesses the situation (also on the basis of his past experience as a national Ombudsman) and sets out his intentions for the future, stressing the need for cooperation with Community institutions and national bodies.

Summaries of complaints received and some general statistics are annexed to the report. They make interesting reading, but in order to fully appreciate the latter it is necessary to read carefully the descriptive part of the report, which gives the right guidance to the figures.

III. Comments

A. PETITIONS AND COMPLAINTS

6. The report identifies the respective fields of action of the European Ombudsman and the Committee on Petitions as set out in the Treaty: the Ombudsman can validly act in cases of (alleged) maladministration in the activities of the Community institutions and bodies, while a petition is admissible when its subject falls within the sphere of activities of the European Union. In other words, given the relatively limited amount of instances in which European organs directly carry out management functions, the remit of the European Ombudsman is less wide than that of the Committee on Petitions, which is part of an institution carrying out general political tasks and having a wide range of responsibilities.

7. The final remarks by Mr Söderman make it clear that the right to petition the European Parliament and the faculty to address complaints to the European Ombudsman are complementary, in that they both respond to the same need, and aim at setting up as comprehensive, simple and effective a system as possible for European citizens and residents to find extra-judicial redress and assistance in the European system. The text correctly observes that, "in cases where the mandate of the Ombudsman is too narrow, the European Parliament (in practice the Committee on Petitions) often has the power to act".

It would have been preferable for this statement to be made also in the two other parts of the report which identify the material limits of admissibility of the complaints to the Ombudsman, since these are going to be read with particular care by persons wanting to introduce complaints: in sections I.3.2 ("maladministration") and I.3.3, it could have been stressed that many of the inadmissible complaints (for example, recognition of a foreign driving licence - complaint nΊ 90) would have constituted admissible petitions. Also, section II.2.2 of the report states that the Ombudsman may advise some complainants to apply to the European Commission ("guardian of the Treaty"), possibly asking for an infringement procedure under Article 169 EC to be opened; again, depending on the circumstances, he may also want to advise some complainants to put in a petition to the European Parliament instead (or as well)[1]. Indeed, it is to be noted that complaints to the European Commission are often also presented as petitions to the European Parliament; moreover, when the Commission considers it appropriate, it registers as internal complaints petitions which are transmitted to it by the European Parliament. A complaint to the Commission is a step of an administrative nature, while in addressing petitions to the European Parliament citizens and residents make use of their right and exercise a political function, allowing the European Parliament to supervise Community policies.

In this respect, it is noteworthy that the Ombudsman and the Committee on Petitions agreed to cooperate in referring to each other, with the agreement of the petitioner or complainant, all those representations which fall within the other body's remit; i.e., the Committee on Petitions forwards to the European Ombudsman those petitions which purport maladministration of a Community institution or body, while the European Ombdusman transmits to the Committee on Petitions those complaints which are not admissible as such, but could be admissible petitions (see report of the European Ombudsman, section II.2.1).

8. As pointed out above, the report rightly avoids attempting a definition of maladministration, relying rather on a pragmatic approach. However, in the list of cases that "may .... amount to maladministration" (see Part I.3.2), some concepts might be worth clarifying. Thus, referring to "unfairness", "malfunction or incompetence" might both be too general and lead to uncertainty among prospective complainants. In the same section, at the last example it should be pointed out that only unlawful "lack or refusal of information" can constitute maladministration.

B. CASES OF INADMISSIBILITY

9. Examples of inadmissible complaints (section I.3.3) show that the main criteria of admissibility are implemented correctly. The European Ombudsman's approach is particularly to be shared when he stresses he will consider inadmissible any complaint about the decisions of the Committee on Petitions itself, since its decisions (like those of the Parliament as a whole) are political matters. His statement that "an unduly technical or legalistic approach ... would be inappropriate", and that, when in doubt, one should rule in favour of the complainant is also to be welcomed.

10. The decision of the European Ombudsman not to apply strictly the provision of the Statute (Article 2 (4)) that a complaint should be made within two years of the date in which the facts came to the attention of the complainant is to be approved - indeed, strengthened. By its very nature, this rule should not be applied at all for the first two years of the functioning of the Office of the European Ombudsman, since there may be situations of inherent injustice that have lasted for a long time, and not for that reason are they less unjust; quite the opposite. The report attempts in great details to justify that the European Ombudsman can waive this condition; this is not necessary. In the (unlikely) event that an institution asked for its opinion objected on the grounds of Article 2 (4) of the Statute, the Ombudsman could always institute proceedings at his own initiative, according to Article 138e of the Treaty. Thus, the general principle mentioned above (when in doubt, rule in favour of the complainant) could perhaps also have been applied with reference to a complaint by a former official concerning a dispute with the Parliament. The complainant had actually tabled a petition (nΊ 622/95), examination of which was concluded when the petitioner was informed that he could apply to the European Ombudsman.

11. Another case of inadmissibility is set out in Part II.2.1, which provides that the Ombudsman will not deal with cases already examined by the Committee on Petitions, unless new elements are provided. This is quite correct, unless of course the Committee on Petitions itself has advised the petitioners to address themselves to the European Ombudsman, recognizing that the subject of the claim could be alleged maladministration of a Community institution. One such example was quoted in the previous paragraph; another case of this nature is petition nΊ 52/95, on the marketing of bananas from Somalia.

Also to be noted that there are exceptions to the criteria mentioned above. Thus, in the list of admissible complaints (Annex B), there are two complaints on the European Commission's alleged failure to enquire into an alleged violation of Community legislation in the widening of the M40 motorway in Britain. This is also the subject of some petitions under consideration by the committee (Petitions Nos. 865/95, 972/95 and 90/96). Moreover, the application of the concept of maladministration will have to be carefully considered.

C. OTHER OBSERVATIONS ON PARTICULAR POINTS

12. The power of the European Ombudsman - which some national Ombudsmen do not possess - to conduct own initiative inquiries is provided for in the Treaty itself (Article 138e).

The restraint of the report (Part I, 4) in stressing that the Ombudsman's primary duty is to deal with the complaints it receives is to be approved in this first annual report. It should not, however be excluded that this form of inquiry may acquire a far greater importance in the years to come, to the benefit of the democratic functioning of the Union and, therefore, of the Parliament and the citizens.

13. In the section (I.3.1) on transparency and confidentiality, it is interesting to note that, although the register of complaints, the annual report and the final decisions concerning each complaint are public, inquiries following the "first opinion" are carried out in private, so as to have the best possible results. The Ombudsman has indicated that he will normally treat the first opinion as a public document unless the complainant has requested confidentiality.

14. The report helpfully sets out (see section II.2.1) the special cooperation of the Ombudsman with the Committee on Petitions. The Ombudsman will appear before the Committee on Petitions, at the initiative of either body, not only for the annual report, to give general information about his work, but also to illustrate to the Committee "special reports" (reports on particular cases).The Ombudsman will publish his special reports. If necessary, he will anonymise the report, to preserve confidentiality.

IV. Conclusions

15. The Treaty on European Union has created the new office of the Ombudsman of the European Union (European Ombudsman), and the right to file complaints with this independent organ as an important part of the European Citizenship. It thus ensures that the new body can autonomously defend citizens against maladministration in Union institutions and bodies. Nonetheless, the Ombudsman is a parliamentary Ombudsman: he is appointed by the European Parliament and must discharge his task by submitting a report to Parliament on the outcome of his inquiries.

The Committee on Petitions is the parliamentary organ to whom the Ombudsman submits his reports and which needs to establish a complementary working relationship in view of their various responsibilities on petitions and complaints of the citizens of the European Union. In practice, this means an additional role for the Committee on Petitions in overseeing the functions of the Ombudsman relating to the European Parliament.

16. With respect to the obligation of Council and Commission (laid down in their 1993 Code of Conduct) to improve their transparency, the Commission is reminded of the fact that the competent Member of the Commission, Mrs Gradin, has undertaken before the Committee on Petitions to raise the issues of transparency and access to information for the citizen during the Intergovernmental Conference on the revision of the Treaty on European Union. It is a fundamental right of citizens of a democracy that access to information and public accountability be an explicit commitment of the institutions.

  • [1]  Another course of action is followed in section II.2.2 of the report, where it is stated that, in case of infringement of the "rights of Union citizenship", the Ombudsman will normally advise the complainant to petition the Parliament, but that, in those cases, "if the infringement seems to be of a grave nature, he may also notify the Commission of the complaint". The reason for this distinction is not clear.