REPORT on a proposal for a decision of the European Parliament amending its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties

13.3.2008 - (2006/2223(INI))

Committee on Constitutional Affairs
Rapporteur: Anneli Jäätteenmäki

MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION

on a proposal for a decision of the European Parliament amending its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties

(2006/2223(INI))

The European Parliament,

–   having regard to the letter from the European Ombudsman to its President of 11 July 2006,

–   having regard to the letter of 21 September 2006 from its President to its Committee on Constitutional Affairs,

–   having regard to Article 195(4) of the EC Treaty,

–   having regard to Article 107d(4) of the Euratom Treaty,

–   having regard to its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties^[1]1, as incorporated into Annex X to Parliament's Rules of Procedure,

–   having regard to Rule 45(2) of its Rules of Procedure,

–   having regard to the report of the Committee on Constitutional Affairs and the opinion of the Committee on Petitions (A6‑0076/2008),

1.  Adopts the annexed decision amending its decision 94/262/ECSC, EC, Euratom;

2.  Instructs its President to forward this resolution to the Council and the Commission, with a view to the implementation of Article 195(4) of the EC Treaty;

3.  Instructs its President to ensure the publication in good time of the annexed Decision in the Official Journal of the European Union once the opinion of the Commission and the approval of the Council have been obtained.

• [1] ¹ OJ L 113, 4.5.1994, p. 15. Decision as amended by Decision 2002/262/EC, ECSC, Euratom (OJ L 92, 9.4.2002, p. 13).

ANNEX

Decision of the European Parliament

amending Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties

THE EUROPEAN PARLIAMENT,

Having regard to the Treaty establishing the European Community, and in particular Article 195(4) thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 107d(4) thereof,

Having regard to its resolution of ... on a proposal for a decision of the European Parliament amending its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties,

Having regard to the opinion of the Commission,

With the approval of the Council,

Whereas:

(1) The Charter of the Fundamental Rights of the European Union[1] recognises the right to good administration as a fundamental right of European citizens.

(2) Citizens' confidence in the capacity of the Ombudsman to conduct thorough and impartial inquiries in alleged cases of maladministration is fundamental to the success of the Ombudsman's action.

(3) It is desirable to adapt the Statute of the Ombudsman in order to eliminate any possible uncertainty concerning the capacity of the Ombudsman to conduct thorough and impartial inquiries in alleged cases of maladministration.

(4) It is desirable to adapt the Statute of the Ombudsman in order to allow for any possible evolution of the legal provisions or of case-law concerning the intervention of bodies, offices and agencies of the European Union in cases before the Court of Justice.

(5) It is desirable to adapt the Statute of the Ombudsman to take account of the changes that have occurred in recent years as regards the role of EU institutions or bodies in combating fraud against the financial interests of the European Union, notably the creation of the European Anti-Fraud Office (OLAF), so as to allow the Ombudsman to notify those institutions or bodies of any information falling within their remit.

(6) It is desirable to take steps so as to allow the Ombudsman to develop his or her cooperation with similar institutions at national and international level as well as with national or international institutions even where they cover a wider scope of activities than the European Ombudsman – such as the protection of human rights –, since such cooperation may make a positive contribution towards enhancing the efficiency of the Ombudsman's action.

(7) The Treaty establishing the European Coal and Steel Community expired in 2002,

HAS DECIDED AS FOLLOWS:

Article 1

Citation 1, Recital 3, Article 1(1), subparagraphs 1 and 5 of Article 3(2), Article 4 and Article 5 of Decision 94/262/ECSC, EC, Euratom are amended as follows:

Ombudsman's statute	Proposal for amendment
Amendment 1 Citation 1
Having regard to the Treaties establishing the European Communities, and in particular Article 195(4) of the Treaty establishing the European Community, Article 20d(4) of the Treaty establishing the European Coal and Steel Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community,	Having regard to the Treaties establishing the European Communities, and in particular Article 195(4) of the Treaty establishing the European Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community,
Justification
Since the Treaty establishing the European Coal and Steel Community expired in 2002, the reference to its provisions becomes obsolete and should be deleted.
Amendment 2 Recital 3
Whereas the Ombudsman, who may also act on his own initiative, must have access to all the elements required for the performance of his duties; whereas to that end Community institutions and bodies are obliged to supply the Ombudsman, at his request, with any information which he requests of them, unless there are duly substantiated grounds for secrecy, and without prejudice to the Ombudsman's obligation not to divulge such information; whereas the Member States' authorities are obliged to provide the Ombudsman with all necessary information save where such information is covered by rules or regulations on secrecy or by provisions preventing its being communicated; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations;	Whereas the Ombudsman, who may also act on his own initiative, must have access to all the elements required for the performance of his duties; whereas to that end Community institutions and bodies are obliged to supply the Ombudsman, at his request, with any information which he requests of them and without prejudice to the Ombudsman's obligation not to divulge such information and to treat classified information or documents in accordance with rules strictly equivalent to those in force in the institutions or bodies in question; whereas the institutions or bodies supplying classified information or documents shall notify the Ombudsman of such classification; whereas the Ombudsman and the institutions and bodies in question should agree on the operational conditions for the supply of classified information or documents; whereas the Member States' authorities are obliged to provide the Ombudsman with all necessary information save where such information is covered by rules or regulations on secrecy or by provisions preventing its being communicated; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations;
Justification
To bring the wording of this recital into line with the changes made to Article 3, paragraph 2, subparagraph 1, by Amendment 4.
Amendment 3 Article 1, paragraph 1
1. The regulations and general conditions governing the performance of the Ombudsman's duties shall be as laid down by this Decision in accordance with Article 195(4) of the Treaty establishing the European Community, Article 20d(4) of the Treaty establishing the European Coal and Steel Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community.	1. The regulations and general conditions governing the performance of the Ombudsman's duties shall be as laid down by this Decision in accordance with Article 195(4) of the Treaty establishing the European Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community.
Justification
Since the Treaty establishing the European Coal and Steel Community expired in 2002, the reference to its provisions becomes obsolete and should be deleted.
Amendment 4 Article 3, paragraph 2, subparagraph 1
2. The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy.	2. The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to observance by the Ombudsman of rules strictly equivalent to those in force in the institution or body in question.
	The institutions supplying classified information or documents as mentioned in the previous subparagraph shall inform the Ombudsman of such classification.
	For the implementation of rules provided for in the first subparagraph, the Ombudsman may agree with the institutions the operational conditions for access to classified information and other information covered by the obligation of professional secrecy.
Justification
The present drafting may detract from citizens' confidence in the Ombudsman's action and should be deleted. However, special rules are provided for the access to classified information or documents establishing the duties of the Ombudsman and of the supplying institutions to this matter. Besides, the Ombudsman and his staff are also submitted to the duty of confidentiality, which is reinforced (see further down, Amendment 6 to Article 4, paragraph 1).
Amendment 5 Article 3, paragraph 2, subparagraph 5
Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they 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.	Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall continue to be bound by the relevant rules of the Staff Regulations, notably their duty of professional secrecy.
Justification
The sentence deleted was liable to detract from the confidence of the public in the Ombudsman's capacity to conduct thorough inquiries as it could be interpreted as authorising officials not to tell the truth to the Ombudsman. The duties imposed by the Staff Regulations must, however, be duly taken into consideration.
Amendment 6 Article 4
1. The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community, Article 47(2) of the Treaty establishing the European Coal and Steel Community and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall also be required to treat in confidence any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2.	1. The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall also be required not to divulge any classified information or any document supplied to the Ombudsman as sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, or as documents falling within the scope of the Community legislation regarding the protection of personal data, as well as any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2.
	The Ombudsman and his staff shall deal with applications from third parties for access to documents obtained by the Ombudsman in the course of inquiries in accordance with the conditions and limits provided for in Regulation (EC) No 1049/2001, in particular Article 4 thereof.
2. If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities and, if appropriate, the Community institution with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view.	2. If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities or the competent Community institution or body; if appropriate, the Ombudsman shall also notify the Community institution or body with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view.
Justification
The Ombudsman and his/her staff are already covered by the duty of non-disclosure of information obtained in the course of their inquiries. The goal of the amendment to paragraph 1 is to strengthen this duty as far as sensitive documents and documents raising questions of personal data protection are concerned. The access by the public to documents obtained by the Ombudsman in the course of inquiries is also addressed. As regards paragraph 2, the aim is to clarify that the Ombudsman has the choice to notify either the national authorities or the competent European institutions and bodies (e.g. OLAF or the future European Public Prosecutor) of information acquired by him with regard to possible criminal activities or fraud or corruption detrimental to the financial interests of the Union.
Amendment 7 Article 5
Insofar as it may help to make his enquiries more efficient and better safeguard the rights and interests of persons who make complaints to him, the Ombudsman may cooperate with authorities of the same type in certain Member States provided he complies with the national law applicable. The Ombudsman may not by this means demand to see documents to which he would not have access under Article 3.	Insofar as it may help to make his enquiries more efficient and better safeguard the rights and interests of persons who make complaints to him, the Ombudsman may cooperate with authorities of the same type in certain Member States provided he complies with the national law applicable. The Ombudsman may not by this means demand to see documents to which he would not have access under Article 3. The Ombudsman may, under the same conditions, cooperate with other institutions for the promotion and protection of fundamental rights.
Justification
The amendment seeks to allow the Ombudsman to cooperate also with other national or international institutions operating in the field of fundamental rights. The term 'fundamental rights' is more generic, encompassing also the notion of 'human rights', and is consistent with current practice and with the Charter of Fundamental Rights in which citizen's rights to good administration and to complain to the European Ombudsman are enshrined.

Article 2

This decision shall be published in the Official Journal of the European Union.

Article 3

This decision shall enter into force on the date of its publication in the Official Journal of the European Union.

Done in Brussels on

For the European Parliament

The President

• [1]  OJ C 303, 14.12.2007, p. 1.

EXPLANATORY STATEMENT

By letter of 11 July 2006 addressed to President Pöttering, the European Ombudsman, Mr Diamandouros, requested the European Parliament to initiate the procedure for modification of the Statute of the Ombudsman concerning several provisions which present drafting he considers not to be the most adequate.

This request concerned the following points:

1.   the power to intervene in cases before the Court of Justice of the European Union (article 1, paragraph 3)

2.   the access to documents of the Institutions (article 3, paragraph 2, 1st subparagraph)

3.   the testimonials of officials (article 1, paragraph 3, 5th subparagraph)

4.   the information on possible criminal activities (article 4, paragraph 2)

5.   cooperation with international institutions in the field of Human Rights/ Fundamental Rights (article 5)

Some of those issues have already been dealt with by the Parliament in 2001, at the initiative of the then Ombudsman Mr Söderman. The Parliament then adopted a resolution, in 6 September 2001, on the basis of a report of the Constitutional Affairs Committee by Ms Teresa Almeida Garrett, which purported several amendments quite similar to the proposals now advanced by Mr Diamandouros. At the occasion, an agreement with the Council, supported by the Commission, seemed within reach, but the negotiations never came to an end due to the expiring of the mandate of Mr Söderman.

1.   The power to intervene in cases before the Court of Justice of the European Union

This proposal raised some controversy. After several discussions, the Ombudsman informed the committee that he wishes to withdraw it. The rapporteur considers that the amendment she had envisaged constitutes a step in the right direction and would have properly taken into account the changes introduced in Article 40(2) of the Statute of the Court of Justice by the Treaty of Lisbon. However, she understands that the division amongst political groups concerning this topic advises not to go forward. Anyway, the Ombudsman can, when the right moment arrives, address himself directly to the Court in order to obtain a ruling on the specific definition of the scope and conditions of his possible right of intervention.

2.   Access to documents and information

Article 3(2) of the Statue of the Ombudsman states:

"2. The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy."

In its letter the Ombudsman demands that the last sentence referring to a possible restriction to the access to information be suppressed, as it may harm the confidence of the public "in the Ombudsman's ability to conduct a thorough inquiry".

The need for the Ombudsman to have access to all relevant information in order to make a grounded judgement of the merits of complains from the citizens is obvious.

Although stressing that in no case have the institutions until now refused the access to the relevant documents or information, the Ombudsman considers that the sentence in question could lead to eventual conflicts and may harm the thrust of the public in the action of the Ombudsman.

Furthermore, to admit that the institutions can "on duly substantiated grounds of secrecy" refuse the access of the Ombudsman to the relevant documentation that he needs to form his/hers judgement on the appropriateness of the actions of the administration is too vague and does leave a too wide margin of appreciation for the institutions. Any eventual restriction of the access to information by the Ombudsman should be based on strict legal criteria and not on such an open clause that leaves to the administration itself the definition of the cases in which it considers that secrecy should apply. On the other hand, one does not see what kind of "duly substantiated grounds" can justify the "secrecy" of the information detained by the administration in the confronts of the Ombudsman, as this one, as well as his staff, is also bounded by the same duty of secrecy as the institutions. Not to mention that any contribution of the Ombudsman to improve good administration is also in the interest of the institutions.

At this light, the restriction foreseen in the last sentence of paragraph 2 seems undesirable and somehow constitutes a sign of an unjustified distrust in the Ombudsman. It appears thus convenient to delete the sentence in question.

However, this does not imply that the Ombudsman should have an unconditional access to all information or documents. It is advisable to introduce objective rules establishing the duties of the Ombudsman in what concerns access to classified information or documents, maxime to sensitive documents within the meaning of article 9 of the Regulation (EC) 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. This can easily be done by establishing a duty for the Ombudsman to respect rules strictly similar to those in force in the institutions or bodies that supply those documents. This is perfectly on line with the internal rules existing in different institutions in what concerns the access to classified information, notably the rules in force in the Commission concerning internal rules of security (Commission Decision of 29 November 2001 amending its internal Rules of Procedure).

In parallel it is convenient to stress that the institutions supplying classified information or documents to the Ombudsman must inform the Ombudsman of this classification.

Finally, it is also useful to invite the Ombudsman and the institutions to agree on concrete operational rules for the supply of such documents, as the best way to avoid disputes in the future.

A similar modification will also have to be introduced in the preamble of the Statute of the Ombudsman.

In addition, it would be convenient to reinforce the provisions that spell out that both the Ombudsman and his staff are themselves bounded by the duty of non disclosure of the information they accede to in the course of their inquiries, in order to specify that they shall not divulge any classified document or information and to stress that this duty is particularly strong in what concerns "sensitive" documents within the meaning of Article 9 of Regulation (EC) No 1049/2001[1] and documents having an impact in terms of personal data protection, as well as to stress that the access by the public to the documents obtained by the Ombudsman in the course of his inquiries must be submitted to the conditions and limits set out in the Regulation (EC) No 1049/2001 mentioned.

It should be noted that the Parliament has already dealt with this question in 2001, in the framework of the aforementioned resolution of the 6 September. At the time, Parliament adopted a similar modification of paragraph 2, together with other modifications suggested by the then Ombudsman, Mr Söderman, which were not retaken by Mr Diamandouros. These concerned notably documents originating from Member States. As Mr Diamandouros stressed before the Constitutional Affairs Committee that he sees no need to modify these rules, which constitute a rather sensible matter for Member States, there seems to be no need for the Parliament to revive those modifications.

3.   The testimonial of officials

Article 3, paragraph 2, last sub-paragraph of the Statute of the Ombudsman stipulates that:

"Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they 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 considers in his letter that the last sentence of this article contains "obscure" conditions which may be interpreted by public opinion as meaning that "witness might not always be required to tell the truth". This may also hinder the thrust of citizens in the capacity of the Ombudsman to conduct thorough inquiries. Thus, Mr Diamandouros proposes that it be deleted.

It is in fact difficult to explain to public opinion why officials should testify before the Ombudsman "on behalf and in accordance with the instructions from their administrations" and not on the basis of the knowledge they have of the facts upon which the Ombudsman is inquiring. This could even be interpreted as implying that they may be entitled to lye to the Ombudsman if they are instructed to do so. This is clearly not the kind of standards that correspond to the demands of a modern and open administration and would not meet the requirements of the concept of good administration, recognized as a fundamental right of European citizens (article 41 of the Charter of Fundamental Rights of the European Union). Consequently, this sentence clearly should be deleted.

4.   Information concerning possible criminal or illegal activity

Mr Diamandouros proposes also to modify article 4 of the Statute of the Ombudsman in order to confer to the Ombudsman certain discretion in the choice of the authorities he shall inform when in the course of the inquiries he conducts he learns of facts that he considers might be related to criminal activities. Instead of only alerting the national competent authorities, as the present drafting of article 4 foresees, he proposes to allow the Ombudsman to have the choice between alerting the national authorities or the Union's competent institutions and bodies, such as for instance OLAF or the future European Public Prosecutor, or any other organism with competencies in this field that could be created in the future.

It should be recognized that in some cases it may be in fact more advisable to alert in first hand the Europeans authorities or bodies. It could be the case when doubtful activities concerning fraud against the financial interests of the EU or corruption spotted by the Ombudsman can be dealt more appropriately through the disciplinary competencies of the European institutions or can be better investigated by OLAF or by the future European Public Prosecutor than by the national authorities of a single Member State.

Moreover, we should remember that, according to article 22a of the Staff Regulations, all civil servants of the European institutions, including the staff of the Ombudsman, are bound by the duty to inform their superiors or the OLAF of any possible illegal activity, including fraud or corruption detrimental to the interests of the Union.

5.   Cooperation with other international institutions

Mr Diamandouros also demands the modification of article 5 of the Statute of the Ombudsman[2] in order to allow the Ombudsman to cooperate with other institutions for the promotion and protection of Fundamental Rights.

To this purpose, one must remember that although a minority of national Ombudsman of Member States have some specific competencies in what concerns the protection of Fundamental Rights of citizens (including the right of appealing to Court), this is not the case of the majority of them and it is not the case of the European Ombudsman. However, it is not deniable that, as a simple cooperation, with no specific new competencies associated to it that could eventually conflict with the competencies of other institutions or bodies of Union, contacts and exchange of experiences between the Ombudsman and such international structures may be enriching for both parts and help improving the performance of the European Ombudsman in what concerns the promotion of "good administration", recognized as a fundamental right of European citizens by the Charter of Fundamental Rights. In this measure, the suggestion of Mr Diamandouros seems acceptable.

6.   Other issues

Mr Diamandouros also suggests that the references to the provisions of the Treaty on the European Coal and Steel Community be deleted, as this treaty expired in 2002. This explains amendments 1, 3 and 6 (first part).

• [1]  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, 31.5.2001, p. 43.
• [2]  "Insofar as it may help to make his enquiries more efficient and better safeguard the rights and interests of persons who make complaints to him, the Ombudsman may cooperate with authorities of the same type in certain Member States provided he complies with the national law applicable. The Ombudsman may not by this means demand to see documents to which he would not have access under Article 3."

OPINION of the Committee on Petitions (8.1.2008)

for the Committee on Constitutional Affairs

on a proposal for a Decision of the European Parliament amending its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties
(2006/2223(INI))

Draftswoman: Maria Matsouka

SHORT JUSTIFICATION

In order to ensure that it is able to function democratically, the European Union has always needed the legitimisation of its citizens – and this is all the more the case as it expands. Such legitimisation directly depends on a number of factors, including confidence in a secure and evolving system of values which uphold the fundamental rights of European citizens.

A historic milestone has been reached in the process of European integration insofar as the need for communication between the Union and European citizens has become clearer than ever. First and foremost, this means that the European Union is required to take on board the concerns of its citizens and succeed in reassuring them that its institutions are constantly endeavouring to meet their expectations. In order to be credible, such endeavours must keep step with historic developments and the fresh requirements which must be met as a result to ensure the harmonious functioning of the Union.

The institutional structure of the European Union is fashioned so as to reflect and conform to the dual basic principle of 'Union of States and Union of Peoples'. The institutions of the Union represent both the States and the people. The European Parliament is only one of the institutions representing the people. The primary objective of the European Ombudsman, as an institution governed by the rule of law, is to ensure correct conduct by the institutions and bodies of the European Union in their dealings with members of the public, showing due respect for them and thereby strengthening their confidence in these institutions and bodies and in the European edifice as a whole, wherever possible.

The proposals relating to the review of the decision of the European Parliament 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties as incorporated into Annex X to the Rules of Procedure of Parliament^[1]1acquire particular significance in the light of the above observations. Insofar as these modifications effectively equip the Ombudsman to function as required by European Union primary legislation, it is important that they be adopted.

SUGGESTIONS

The Committee on Petitions calls on the Committee on Constitutional Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

1. Intervention in cases before courts

Having regard to the provisions of the Statute (Article 40, paragraph 2) and Rules of Procedure (Article 93) of the Court of Justice of the European Communities (ECJ), the possibility of submitting evidence to the ECJ can only facilitate the legal investigation process. In no case can it be looked upon as interference, since the Court itself decides, after an application has been made, whether or not to make use of testimony. Were this not so, it would be tantamount to questioning the soundness of the ECJ's judgment;

2. Access to documents

Access to all documents, without exception, in the possession of the Community institutions makes it possible to ensure that the Ombudsman is as fully informed as possible and hence in a position to make more appropriate recommendations, thereby protecting individual citizens more effectively. Moreover, under no circumstances is the Ombudsman entitled to divulge the contents of those documents;

3. Testimony given by officials of the Community institutions

As regards testimony given by officials and other servants of the European institutions pursuant to instructions from their administrations, the wording of the relevant provision risks undermining the authority of the Community institutions, creating the impression that they may have something to hide and neglecting the fact that they are, or should be, at the service of the citizens. Officials should be bound only by the relevant rules of the Staff Regulations;

4. Information concerning facts indicating the commission of an offence under criminal law

Where the Ombudsman uncovers facts indicating the commission of an offence under criminal law, there can be no arguable objection to the possibility of informing the Community institution responsible, or even bringing the matter to the attention of OLAF, in so far as this helps to ensure greater effectiveness in the attribution of responsibility and the administration of justice;

5. Cooperation in the field of human rights

Cooperation with institutions upholding fundamental rights should be possible as a matter of course. Nevertheless, it should be underlined that such cooperation should take place under the conditions specified in Article 5 of Parliament's decision on the regulations and general conditions governing the performance of the Ombudsman's duties.

RESULT OF FINAL VOTE IN COMMITTEE

Date adopted	20.12.2007
Result of final vote	+: –: 0:	23 1 0
Members present for the final vote	Robert Atkins, Inés Ayala Sender, Thijs Berman, Simon Busuttil, Carlos Carnero González, Marie-Hélène Descamps, Glyn Ford, David Hammerstein, Lidia Joanna Geringer de Oedenberg, András Gyürk, José Javier, Marcin Libicki, Manolis Mavrommatis, David Martin, Jean-Claude Martinez, Maria Matsouka, Kathy Sinnott, Margie Sudre, Antonios Trakatellis, Dushana Zdravkova, Rainer Wieland
Substitute(s) present for the final vote
Substitute(s) under Rule 178(2) present for the final vote	Jorgo Chatzimarkakis, José Javier Pomés Ruiz, Mihaela Popa, Grażyna Staniszewska

• [1] ¹ OJ L 113, 4.5.1994, p. 15. Decision amended by the Decision of the European Parliament of 14 March 2002, 2002/262/EC, ECSC, Euratom (OJ L 92, 9.4.2002, p. 13).

RESULT OF FINAL VOTE IN COMMITTEE

Date adopted	10.3.2008
Result of final vote	+: –: 0:	19 0 3
Members present for the final vote	Jim Allister, Enrique Barón Crespo, Jens-Peter Bonde, Richard Corbett, Brian Crowley, Jean-Luc Dehaene, Andrew Duff, Maria da Assunção Esteves, Ingo Friedrich, Bronisław Geremek, Anneli Jäätteenmäki, Sylvia-Yvonne Kaufmann, Timothy Kirkhope, Jo Leinen, Íñigo Méndez de Vigo, József Szájer, Riccardo Ventre, Dushana Zdravkova
Substitute(s) present for the final vote	Costas Botopoulos, Carlos Carnero González, Kathy Sinnott, Alexander Stubb
Substitute(s) under Rule 178(2) present for the final vote	Claude Turmes