REPORT on the annual report of the activities of the European Ombudsman in 1998 (C4-0138/99)

18 March 1999

Committee on Petitions
Rapporteur: Laura De Esteban Martin

By letter of 8 February 1999 the European Ombudsman, Mr Jacob Söderman, forwarded his annual report to the European Parliament, pursuant to Article 138e(1) of the Treaty on European Union and Article 3(8) of the Decision of the European Parliament on the regulations and general conditions governing the performance of the European Ombudsman's duties.

At the sitting of 22 March 1999 the President of the European Parliament will announce that he had referred this annual report to the Committee on Petitions as the committee responsible.

At its meeting of 23 and 24 November 1998, the Committee on Petitions appointed Mrs Laura De Esteban Martin rapporteur.

The European Ombudsman presented his report to the committee at the meeting of 23 and 24 November 1998.

At its meetings of 16 and 17 February 1999 and 15 and 16 March 1999, the committee considered the annual report of the European Ombudsman and the draft report. At the latter meeting it adopted the motion for a resolution unanimously.

The following took part in the vote: Fontana, chairman; Newman and Ullmann, vice-chairmen; De Esteban Martin, rapporteur; Camisón Asensio, Casini (for Danesin), Gutiérrez Díaz, Lomas, Miller (for Hindley pursuant to Rule 138(2)), Papakyriazis, Perry, Schmidbauer, Seal (for Kuhn) and Smith (for Graenitz).

The report was tabled on 18 March 1999.

The deadline for tabling amendments will be indicated in the draft agenda for the relevant partsessionat which the report is to be considered.

A MOTION FOR A RESOLUTION

Resolution on the annual report on the activities of the European Ombudsman in 1998 (C4-0138/99)

The European Parliament,

- having regard to the annual report of the European Ombudsman for 1998 (C4-0138/99),

- having regard to the Treaty establishing the European Community and especially Articles 8d, second paragraph and 138e thereof,

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

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

- having regard to its resolution of 17 November 1993 and its decision on the regulations and general conditions governing the performance of the European Ombudsman's duties adopted by the European Parliament on 9 March 1994 and, in particular, Article 3(8) thereof[1],

- having regard to the resolution on the role of the European Ombudsman, adopted by the European Parliament on 14 July 1995[2],

- having regard to its resolution of 15 July 1997 on the annual report for 1996 of the European Ombudsman[3],

- having regard to its previous resolutions on petitions, particularly that adopted on 16 July 1998 on the basis of the annual report on the deliberations of the Committee on Petitions during the parliamentary year 1997-1998[4],

- having regard to its resolution of 10 June 1997 on the basis of the annual report on the deliberations of the Committee on Petitions during the parliamentary year 1996-1997[5],

- having regard to the report of the Committee on Petitions (A4-0119/99),

A. whereas, pursuant to the Treaty on European Union, the duties of the European Ombudsman are to conduct inquiries for which he finds grounds concerning instances of maladministration in the activities of the Community institutions or bodies, on the basis of complaints submitted to him or on his own initiative, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role,

B. whereas the integration of the European Union cannot be deepened unless European citizens feel that they are actively involved in the defence of their rights in a manner which is both transparent and inspires trust in the decisions which are taken,

C. whereas the increase in the number of complaints to the European Ombudsman shows the public's concern for more effective and transparent administration,

D. whereas cooperation and collaboration between the European Parliament, through the Committee on Petitions, as the committee responsible, and the European Ombudsman must help to define, defend and guarantee the rights of European citizens,

1. Congratulates the European Ombudsman on his systematic, lucid and concise annual report for 1998;

2. Expresses its satisfaction at the irreproachable and creative cooperation between the European Ombudsman and the Committee on Petitions and the European Parliament;

3. Welcomes the efforts made by the European Ombudsman to ensure that in the period before judicial proceedings may begin, provided for under Article 169 of the EC Treaty, European citizens enjoy a participative, transparent and two-way relationship with the Commission as regards the processing of their complaints about infringements committed by Member States, and are not, on the contrary, relegated to a purely passive role as mere sources of information;

4. Agrees that greater use needs to be made of all available means, including the Internet and the media, of providing European citizens with proper information as to their rights, such as petitions and complaints, so that no-one is prevented from claiming their rights by virtue of the fact that they are unaware of the means at their disposal, both judicial and non-judicial.

5. Welcomes the efforts of the European Ombudsman to establish a creative and fruitful relationship with the national and regional ombudsmen and similar institutions, and urges them to devote greater attention to problems concerning the free movement of persons, which is a sine qua non of full citizenship;

6. Urges the Committee on Institutional Affairs, pursuant to Article 138e(4) of the EC Treaty, to consider amending Article 3(2) of the regulations and general conditions governing the performance of the European Ombudsman's duties, so as to enable the latter, to have access, when carrying out inquiries, to all relevant documents, and obtain freely given and hierarchically untrammelled replies from persons whose evidence is necessary to his just and proper assessment of the complaints submitted to him; whereas these amendments do not, pursuant to Article 4(1) of the regulations and general conditions aforesaid, compromise the duty to observe obligation to secrecy incumbent on the European Ombudsman and his officials, but are essential if European citizens are to be able to have full confidence in the Ombudsman's work;

7. Stresses the urgent need to draw up as soon as possible a code of good administrative behaviour to be applied by all the Community institutions and bodies; whereas this code should be accessible to all European citizens, and be published in the Official Journal;

8. Congratulates the European Ombudsman on the commitment displayed with regard to the organisation and the operating methods of his secretariat, which is an essential factor consolidating his service;

9. Welcomes the decision to assign the European Ombudsman an independent budget, and urges the Council to adopt this decision so that this can be implemented by the budget year 2001 at the latest;

10. Calls on the European Ombudsman to regularise the status of the agents and officials who assist him;

11. Believes that the Rules of Procedure should specifically lay down that the Committee on Petitions is the committee responsible for assessing the European Ombudsman's annual report and his special reports, and supports the efforts of the Committee on the Rules of Procedure, the Verification of Credentials and Immunities with regard to the relevant amendments to Rule 161 of the Rules of Procedure;

12. Instructs its President to forward this resolution and the report by the Committee on Petitions to the European Ombudsman and to all the institutions and bodies of the European Union, the governments and parliaments of the Member States, the national ombudsmen or analogous bodies and the national parliamentary committees responsible for petitions or analogous bodies in the Member States.

• [1] () OJ L 113, 4.5.1994, p. 15.
• [2] () OJ C 249, 25.9.1995, p. 200.
• [3] () OJ C 222, 21.7.1997, p. 3.
• [4] () OJ C 292, 21.9.1998, p. 167.
• [5] () OJ C 200, 30.6.1997, p. 26.

B EXPLANATORY STATEMENT

I. Contents of the report

1. This is the fourth annual report submitted by the European Ombudsman, and the third to cover a calendar year, in this case 1998. The format is the same as for 1997, when it was described as 'refined and concise' by the Committee on Petitions, which welcomed the report as 'thorough and comprehensive'[1]. The same is true of this report, which is well laid out, clear and detailed, and covers a year in which the Ombudsman's services have consolidated the role of a body which, despite its comparative newness, has already won the confidence and gratitude of European citizens.

2. The report comprises seven chapters. The first is a foreword which provides a precise summary of both results achieved and concerns for the future. The second deals with complaints to the Ombudsman and the way in which they were dealt with, setting out the legal basis of the Ombudsman's activities, the concept of 'maladministration', and the stage reached with regard to efforts to create a 'code of good administrative behaviour'. This chapter also contains an account of the growing number of cases reported to the Ombudsman concerning restrictions on the freedom of movement of persons, and finally, deals with difficulties encountered in accessing documents from the Community institutions and bodies. The third chapter describes the Ombudsman's investigations and decisions in connection with lengthy complaints of maladministration, selected so as to avoid repetition - involving the European Parliament, the Council, the Commission and the EU Official Publications Service - and to own-initiative inquiries. The fourth chapter deals with other EU institutions, and the fifth with relations with the national Ombudsmen and similar bodies in the Member States. The sixth chapter concerns the Ombudsman's activities in the field of public relations, and the seventh and last chapter consists of annexes on statistics, expenditure and staff.

II. Comments

(a) Complaints submitted to the European Ombudsman

3. Between 1 January and 31 December 1998, the Ombudsman received 1372 complaints, 1237 from individual citizens, 63 from associations, 60 from companies, 9 forwarded by Members of Parliament and 3 petitions forwarded by the EP's Committee on Petitions to be dealt with as complaints. 244 cases were carried over from the previous year, and one own-initiative inquiry was opened.

The largest number of cases (14%) came from Spain, France and Italy, while Austria and Luxembourg submitted the smallest number of complaints (1%). 76 complaints were received from non-EU countries.

93% of cases were examined for admissibility, and only 411 (31%) were deemed to fall within the Ombudsman's remit, while 911 (69%) did not. Of the 411 admitted, 212 were deemed admissible (170 leading to initiated inquiries, while in 42 cases, there were deemed to be no grounds for opening an inquiry, 9 of them being forwarded to the Committee on Petitions), while 199 cases were deemed non-admissible. Of the inquiries initiated, 129 (75%) concerned the Commission, 27 (16%) the European Parliament and 7 (4%) the Council.

4. 1181 complaints were registered in 1997, and 1372 in 1998, an increase of 129, reflecting wider awareness of the Ombudsman's existence. In 1998, there were 48 cases more than in 1997 falling within the Ombudsman's remit, and 87 fewer outwith it. This comparison suggests that European citizens are more aware of and more familiar with the European Ombudsman's remit under the EC Treaty, and are sending in fewer ineligible complaints of the kind which should be addressed to other, national bodies, judicial or otherwise, which are empowered to safeguard citizens' rights.

5. The report also refers to the efforts which will be made in the coming year to reduce the length of time spent processing complaints: one month to decide on admissibility, and one year to complete an inquiry.

(b) Protecting European citizens' rights more effectively

6. The Ombudsman's 1997 annual report had already referred to the need to improve the position of citizens in the period before judicial proceedings begin, a problem which had given rise to an appeal submitted by the Commission pursuant to Article 169 of the EC Treaty. In his 1998 report, the Ombudsman goes still further and suggests that the ideal would be for the EC Treaty to provide for citizens to have the right to submit complaints to the Commission against possible infringements of Community legislation by the Member States: 'this seems to be the only way to guarantee the status of the citizens as a party in this process, and to ensure proper and transparent dealings with their complaints.'

It is understandable that this desire of citizens to be parties to the process, which is not yet possible under Article 169 of the EC Treaty[2], would constitute the most efficient means of strengthening citizens' confidence in the process instituted by this legal provision. Individual or collective persons have at their disposal only the mechanism laid down in Articles 173 and 175 of the EC Treaties, with the concomitant restrictions arising from 'interest in bringing an action'.

In fact, under the terms of Article 169, citizens are reduced to mere 'informers' with no control over the way a case develops, since the Court of Justice's case law grants the Commission a discretionary power freely to assess the facts brought to its notice. Citizens are not even allowed to complain about the Commission's having decided to close a complaint submitted to it.

The Commission gave evidence of its good will when the Ombudsman carried out his April 1997 investigation into complaints from citizens concerning infringements of Community law by the Member States. It promised to develop and improve the position of citizens in the period before the judicial proceedings begin, laid down by Article 169. What is now required is to step up the promised efforts, keeping citizens informed of the way their complaint is being handled, so that they feel themselves to be actively involved and not merely relegated to the role of informers, and the Commission needs to undertake to inform complainants of the reasons why it has decided, in specific cases, that Community law has not been infringed.

7. With a view to further improving European citizens' awareness of their rights, all remedies under Community law should be clearly mentioned in the Treaty, stressing the vital role played by national courts, and the right of citizens to complain to their national ombudsmen and to petition their own parliaments; the Ombudsman adds that each Member State should have an obligation to ensure that its legal structure includes a non-judicial body.

Many of the complaints submitted to the Ombudsman concern freedom of movement, since citizens do not understand why the subject falls outwith his remit. The Ombudsman believes that this is because citizens are unaware of the fact that they can appeal to national courts and, particularly, to national ombudsmen, who, in so far as Community law forms part of national law, have powers as regards monitoring its application by the national authorities.

The task of informing European citizens of their rights is one for all the Community institutions, and its implementation should involve the press, the audiovisual media, the Internet, public meetings, increased numbers of in-service courses, etc. The free legal assistance provided by unemployed young lawyers in all the Member States could also be of help here, with the European Parliament and Commission offices in capital cities providing the essential logistical support.

(c) A code of good administrative behaviour

8. In November 1998, the Ombudsman began an own-initiative inquiry into the existence and public accessibility, within the different Community institutions and bodies, of a code of good administrative behaviour for officials in their relations with the public. The idea was welcomed by the European Parliament, and Roy Perry, rapporteur on the Committee on Petitions' activities in 1996-1997, stressed the importance of such a code, proposing that for all the European institutions and bodies, the code should be as similar as possible, in the interests of public accessibility and ease of understanding[3]. Such a code should lay down both substantive and procedural principles. The results of the Ombudsman's inquiry will appear in his next annual report.

Such a code of good administrative behaviour is absolutely essential to create a climate of confidence and transparency for citizens' relations with the Community institutions. Parliament should support the drawing up of this code, whose basic principles should, bearing in mind the specific nature of each of the institutions, be the same for all institutions and bodies.

(d) The need to change the Ombudsman's statute

1. Access to all documents

9. The Ombudsman writes that Article 3(2) of his Statute needs to be amended, since it is impossible to carry out an effective inquiry if access cannot be had to all the documents required before a decision can be taken. The Ombudsman rejects as unnecessary and inappropriate the limitations whereby access to a file can be refused on 'duly substantiated grounds of secrecy' and the requirement that officials and other servants of the Community institutions and bodies, when testifying at his request, 'shall speak on behalf of and in accordance with instructions from their administrations and shall continue to be bound by their duty of professional secrecy'. The Ombudsman upholds the general principle of access to all documents relevant to assessing a situation[4].

The Ombudsman's right of access to the documents he requires in order to take a decision is supported by Article 191a, added to the EC Treaty and the Amsterdam Treaty laying down that any citizen of the Union shall have a right of access to the European Parliament, Council and Commission documents, subject to certain conditions. Such access is the bottom line of transparency, and essential to citizens' confidence in the Ombudsman.

2. Budgetary autonomy

10. Some technical changes will be required to Article 12 of the Statute in order to ensure that the Ombudsman's budget is independent, since Article 12 lays down that it constitutes an annex to the EP's budget.

3. Officials of the Ombudsman's private office

11. There is an urgent need to regularise the status of the officials who assist the Ombudsman, as temporary agents, and the great majority of whom have permanent jobs connected with the European Ombudsman's functions and not his private person.

(f) The Ombudsman's relations with the European Parliament

12. The Ombudsman believes that the Rules of the European Parliament concerning the European Ombudsman (Articles 159 to 161) should include a provision on the way Parliament deals with the Annual Report and with possible special reports by the Ombudsman, so as to ensure that the main responsibilities be conferred on one committee as the committee responsible. A report on this issue is being drawn up by the Ombudsman and should be ready before the end of the current parliamentary term.

The Committee on the Rules of Procedure, the Verification of Credentials and Immunities is putting the final touches to a proposal for a decision to amend Article 161(2) of the Rules concerning the procedure for assessing the European Ombudsman's annual report and special reports.

• [1] () Report on the annual report of the activities of the European Ombudsman in 1999 (Doc. A4-258/98) p. 7, paragraph 1 (Rapporteur: Edward Newman).
• [2] () See the Order by the President of the Court of Justice of 7 June 1985, Case 154/85 R (Commission v Italian Republic), ECR 1985, p. 1753. Within the terms of Article 169 of the EC Treaty and concerning restrictions on imports of automobiles, various Italian importers 'requested leave to intervene in the interlocutory proceedings in support of the Commission's submissions'. The Court of Justice ruled categorically and unequivocally that 'that application must be rejected because Article 37 of the Protocol on the Statute of the Court of Justice of the EEC does not permit private individuals or companies to intervene in disputes between the Institutions and Member States' (paragraph no. 3).
• [3] () Document A4-0190/97.
• [4] () See in this connection 'Rapport présenté au Congrès 1998 de la FIDE: Le citoyen, l'administration et le droit communautaire', Jacob Söderman, Revue du Marché Unique Européen 2/1998, p. 57 et seq.