A.    Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties (1)

The European Parliament,

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,

Having regard to the opinion of the Commission,

Having regard to the Council's approval,

Whereas the regulations and general conditions governing the performance of the Ombudsman's duties should be laid down, in compliance with the provisions of the Treaties establishing the European Communities;

Whereas the conditions under which a complaint may be referred to the Ombudsman should be established as well as the relationship between the performance of the duties of Ombudsman and legal or administrative proceedings;

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; whereas access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001 (2), should be subject to compliance with the rules on security of the Community institution or body concerned; whereas the institutions or bodies supplying classified information or documents as mentioned in the first subparagraph of Article 3(2) should inform the Ombudsman of such classification; whereas for the implementation of the rules provided for in the first subparagraph of Article 3(2), the Ombudsman should have agreed in advance with the institution or body concerned the conditions for treatment of classified information or documents and other information covered by the obligation of professional secrecy; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations;

Whereas it is necessary to lay down the procedures to be followed where the Ombudsman's enquiries reveal cases of maladministration; whereas provision should also be made for the submission of a comprehensive report by the Ombudsman to the European Parliament at the end of each annual session;

Whereas the Ombudsman and his staff are obliged to treat in confidence any information which they have acquired in the course of their duties; whereas the Ombudsman is, however, obliged to inform the competent authorities of facts which he considers might relate to criminal law and which have come to his attention in the course of his enquiries;

Whereas provision should be made for the possibility of co-operation between the Ombudsman and authorities of the same type in certain Member States, in compliance with the national laws applicable;

Whereas it is for the European Parliament to appoint the Ombudsman at the beginning of its mandate and for the duration thereof, choosing him from among persons who are Union citizens and offer every requisite guarantee of independence and competence;

Whereas conditions should be laid down for the cessation of the Ombudsman's duties;

Whereas the Ombudsman must perform his duties with complete independence and give a solemn undertaking before the Court of Justice of the European Communities that he will do so when taking up his duties; whereas activities incompatible with the duties of Ombudsman should be laid down as should the remuneration, privileges and immunities of the Ombudsman;

Whereas provisions should be laid down regarding the officials and servants of the Ombudsman's secretariat which will assist him and the budget thereof; whereas the seat of the Ombudsman should be that of the European Parliament;

Whereas it is for the Ombudsman to adopt the implementing provisions for this Decision; whereas furthermore certain transitional provisions should be laid down for the first Ombudsman to be appointed after the entry into force of the EU Treaty,

HAS DECIDED AS FOLLOWS:

Article 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 and Article 107d(4) of the Treaty establishing the European Atomic Energy Community.

2.    The Ombudsman shall perform his duties in accordance with the powers conferred on the Community institutions and bodies by the Treaties.

3.    The Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling.

Article 2

1.    Within the framework of the aforementioned Treaties and the conditions laid down therein, the Ombudsman shall help to uncover maladministration in the activities of the Community institutions and bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role, and make recommendations with a view to putting an end to it. No action by any other authority or person may be the subject of a complaint to the Ombudsman.

2.    Any citizen of the Union or any natural or legal person residing or having his registered office in a Member State of the Union may, directly or through a Member of the European Parliament, refer a complaint to the Ombudsman in respect of an instance of maladministration in the activities of Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. The Ombudsman shall inform the institution or body concerned as soon as a complaint is referred to him.

3.    The complaint must allow the person lodging the complaint and the object of the complaint to be identified; the person lodging the complaint may request that his complaint remain confidential.

4.    A complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint and must be preceded by the appropriate administrative approaches to the institutions and bodies concerned.

5.    The Ombudsman may advise the person lodging the complaint to address it to another authority.

6.    Complaints submitted to the Ombudsman shall not affect time-limits for appeals in administrative or judicial proceedings.

7.    When the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed definitively.

8.    No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90(1) and (2) of the Staff Regulations, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired.

9.    The Ombudsman shall as soon as possible inform the person lodging the complaint of the action he has taken on it.

Article 3

1.    The Ombudsman shall, on his own initiative or following a complaint, conduct all the enquiries which he considers justified to clarify any suspected maladministration in the activities of Community institutions and bodies. He shall inform the institution or body concerned of such action, which may submit any useful comment to him.

2.    The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from 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 compliance with the rules on security of the Community institution or body concerned.

The institutions or bodies supplying classified information or documents as mentioned in the previous subparagraph shall inform the Ombudsman of such classification.

For the implementation of the rules provided for in the first subparagraph, the Ombudsman shall have agreed in advance with the institution or body concerned the conditions for treatment of classified information or documents and other information covered by the obligation of professional secrecy.

The institutions or bodies concerned shall give access to documents originating in a Member State and classed as secret by law or regulation only where that Member State has given its prior agreement.

They shall give access to other documents originating in a Member State after having informed the Member State concerned.

In both cases, in accordance with Article 4, the Ombudsman may not divulge the content of such documents.

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.

3.    The Member States' authorities shall be obliged to provide the Ombudsman, whenever he may so request, via the Permanent Representations of the Member States to the European Communities, with any information that may help to clarify instances of maladministration by Community institutions or bodies unless such information is covered by laws or regulations on secrecy or by provisions preventing its being communicated. Nonetheless, in the latter case, the Member State concerned may allow the Ombudsman to have this information provided that he undertakes not to divulge it.

4.    If the assistance which he requests is not forthcoming, the Ombudsman shall inform the European Parliament, which shall make appropriate representations.

5.    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.

6.    If the Ombudsman finds there has been maladministration, he shall inform the institution or body concerned, where appropriate making draft recommendations. The institution or body so informed shall send the Ombudsman a detailed opinion within three months.

7.    The Ombudsman shall then send a report to the European Parliament and to the institution or body concerned. He may make recommendations in his report. The person lodging the complaint shall be informed by the Ombudsman of the outcome of the inquiries, of the opinion expressed by the institution or body concerned and of any recommendations made by the Ombudsman.

8.    At the end of each annual session the Ombudsman shall submit to the European Parliament a report on the outcome of his inquiries.

Article 4

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, in particular, be required not to divulge any classified information or any document supplied to the Ombudsman, in particular sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, or documents falling within the scope of 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.

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, in so far as the case falls within its powers, the competent Community institution, body or service in charge of combating fraud; 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.

Article 4a

The Ombudsman and his staff shall deal with requests for public access to documents, other than those referred to in Article 4(1), in accordance with the conditions and limits provided for in Regulation (EC) No 1049/2001.

Article 5

1.    In so far 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.

2.    Within the scope of his functions as laid down in Article 195 of the Treaty establishing the European Community and Article 107d of the Treaty establishing the European Atomic Energy Community and avoiding any duplication with the activities of the other institutions or bodies, the Ombudsman may, under the same conditions, cooperate with institutions and bodies of Member States in charge of the promotion and protection of fundamental rights.

Article 6

1.    The Ombudsman shall be appointed by the European Parliament after each election to the European Parliament for the duration of its mandate. He shall be eligible for reappointment.

2.    The Ombudsman shall be chosen from among persons who are Union citizens, have full civil and political rights, offer every guarantee of independence, and meet the conditions required for the exercise of the highest judicial office in their country or have the acknowledged competence and experience to undertake the duties of Ombudsman.

Article 7

1.    The Ombudsman shall cease to exercise his duties either at the end of his term of office or on his resignation or dismissal.

2.    Save in the event of his dismissal, the Ombudsman shall remain in office until his successor has been appointed.

3.    In the event of early cessation of duties, a successor shall be appointed within three months of the office's falling vacant for the remainder of the parliamentary term.

Article 8

An Ombudsman who no longer fulfils the conditions required for the performance of his duties or is guilty of serious misconduct may be dismissed by the Court of Justice of the European Communities at the request of the European Parliament.

Article 9

1.    The Ombudsman shall perform his duties with complete independence, in the general interest of the Communities and of the citizens of the Union. In the performance of his duties he shall neither seek nor accept instructions from any government or other body. He shall refrain from any act incompatible with the nature of his duties.

2.    When taking up his duties, the Ombudsman shall give a solemn undertaking before the Court of Justice of the European Communities that he will perform his duties with complete independence and impartiality and that during and after his term of office he will respect the obligations arising therefrom, in particular his duty to behave with integrity and discretion as regards the acceptance, after he has ceased to hold office, of certain appointments or benefits.

Article 10

1.    During his term of office, the Ombudsman may not engage in any political or administrative duties, or any other occupation, whether gainful or not.

2.    The Ombudsman shall have the same rank in terms of remuneration, allowances and pension as a judge at the Court of Justice of the European Communities.

3.    Articles 12 to 15 and Article 18 of the Protocol on the Privileges and Immunities of the European Communities shall apply to the Ombudsman and to the officials and servants of his secretariat.

Article 11

1.    The Ombudsman shall be assisted by a secretariat, the principal officer of which he shall appoint.

2.    The officials and servants of the Ombudsman's secretariat shall be subject to the rules and regulations applicable to officials and other servants of the European Communities. Their number shall be adopted each year as part of the budgetary procedure.

3.    Officials of the European Communities and of the Member States appointed to the Ombudsman's secretariat shall be seconded in the interests of the service and guaranteed automatic reinstatement in their institution of origin.

4.    In matters concerning his staff, the Ombudsman shall have the same status as the institutions within the meaning of Article 1 of the Staff Regulations of Officials of the European Communities.

Article 12  : Deleted

Article 13

The seat of the Ombudsman shall be that of the European Parliament.

Article 14

The Ombudsman shall adopt the implementing provisions for this Decision.

Article 15

The first Ombudsman to be appointed after the entry into force of the EU Treaty shall be appointed for the remainder of the parliamentary term.

Article 16  : Deleted

Article 17

This Decision shall be published in the Official Journal of the European Communities. It shall enter into force on the date of its publication.

B.     Decision of the European Ombudsman adopting implementing provisions (3)

Article 1  : Definitions

In these implementing provisions,

(a)    "institution concerned" means the Community institution or body which is the object of a complaint or an own initiative inquiry;

(b)    "the Statute" means the regulations and general conditions governing the performance of the Ombudsman's duties;

(c)    in relation to documents and information, "confidential" means "not to be disclosed".

Article 2  : Receipt of complaints

2.1.     Complaints are identified, registered and numbered upon receipt.

2.2.     An acknowledgement of receipt is sent to the complainant, quoting the registration number of the complaint and identifying the legal officer who is dealing with the case.

2.3.     A petition transferred to the Ombudsman by the European Parliament with the consent of the petitioner is treated as a complaint.

2.4.     In appropriate cases and with the consent of the complainant, the Ombudsman may transfer a complaint to the European Parliament to be dealt with as a petition.

2.5.     In appropriate cases and with the consent of the complainant, the Ombudsman may transfer a complaint to another competent authority.

Article 3  : Admissibility of complaints

3.1.     On the basis of the criteria laid down in the Treaty and the Statute, the Ombudsman determines whether a complaint is within his mandate and if so, whether it is admissible; he may request the complainant to provide further information or documents before making the determination.

3.2.     If a complaint is outside the mandate, or inadmissible, the Ombudsman closes the file on the complaint. He informs the complainant of his decision and of the reasons for it. The Ombudsman may advise the complainant to apply to another authority.

Article 4  : Inquiries into admissible complaints

4.1.     The Ombudsman decides whether there are sufficient grounds to justify making inquiries into an admissible complaint.

4.2.     If he does not find sufficient grounds to justify making inquiries, the Ombudsman closes the file on the complaint and informs the complainant accordingly. The Ombudsman may also inform the institution concerned.

4.3.     If the Ombudsman finds sufficient grounds to justify making inquiries, he informs the complainant and the institution concerned. He transmits a copy of the complaint to the institution concerned and invites it to submit an opinion within a specified time that is normally no more than three months. The invitation to the institution concerned may specify particular aspects of the complaint, or specific issues, to which the opinion should be addressed.

4.4.     The opinion shall not include any information or documents which the institution concerned regards as confidential.

4.5.     The institution concerned may request that certain parts of its opinion be disclosed only to the complainant. It shall clearly identify the parts concerned and shall explain the reason or reasons for its request.

4.6.     The Ombudsman sends the opinion of the institution concerned to the complainant. The complainant has the opportunity to submit observations to the Ombudsman, within a specified time that is normally no more than one month.

4.7.     If he considers it useful to do so, the Ombudsman makes further inquiries. Points 4.3 to 4.6 apply to further inquiries, save that the time limit for the institution concerned to reply is normally one month.

4.8.     Where he considers it appropriate to do so, the Ombudsman may use a simplified procedure, with a view to achieving a rapid solution.

4.9.     When he has completed his inquiries. the Ombudsman closes the case with a reasoned decision and informs the complainant and the institution concerned.

Article 5  : Powers of investigation

5.1.     Subject to the conditions laid down in the Statute, the Ombudsman may require Community institutions and bodies and the authorities of Member States to supply, within a reasonable time, information or documents for the purposes of an inquiry. They shall clearly identify any information or documents which they regard as confidential.

5.2.     The Ombudsman may inspect the file of the institution concerned. The institution concerned shall clearly identify any documents in the file which it regards as confidential. The Ombudsman may take copies of the whole file or of specific documents contained in the file. The Ombudsman informs the complainant that an inspection has taken place.

5.3.     The Ombudsman may require officials or other servants of Community institutions or bodies to give evidence under the conditions laid down in the Statute. The Ombudsman may decide that the person giving evidence shall do so in confidence.

5.4.     The Ombudsman may request Community institutions and bodies to make arrangements for him to pursue his inquiries on the spot.

5.5.     The Ombudsman may commission such studies or expert reports, as he considers necessary to the success of an inquiry.

Article 6  : Friendly solutions

6.1.     If the Ombudsman finds maladministration, as far as possible he co-operates with the institution concerned in seeking a friendly solution to eliminate it and to satisfy the complainant.

6.2.     If the Ombudsman considers that such cooperation has been successful, he closes the case with a reasoned decision. He informs the complainant and the institution concerned of the decision.

6.3.     If the Ombudsman considers that a friendly solution is not possible, or that the search for a friendly solution has been unsuccessful, he either closes the case with a reasoned decision that may include a critical remark or makes a report with draft recommendations.

Article 7  : Critical remarks

7.1.     The Ombudsman makes a critical remark if he considers:

(a)    that it is no longer possible for the institution concerned to eliminate the instance of maladministration and

(b)    that the instance of maladministration has no general implications.

7.2.     When the Ombudsman closes the case with a critical remark, he informs the complainant and the institution concerned.

Article 8  : Reports and recommendations

8.1.     The Ombudsman makes a report with draft recommendations to the institution concerned if he considers either

(a)    that it is possible for the institution concerned to eliminate the instance of maladministration, or

(b)    that the instance of maladministration has general implications.

8.2.     The Ombudsman sends a copy of his report and draft recommendations to the institution concerned and to the complainant.

8.3.     The institution concerned sends the Ombudsman a detailed opinion within three months. The detailed opinion could consist of acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendations.

8.4.     If the Ombudsman does not consider that the detailed opinion is satisfactory he may draw up a special report to the European Parliament in relation to the instance of maladministration. The report may contain recommendations. The Ombudsman sends a copy of the report to the institution concerned and to the complainant.

Article 9  : Own-initiative inquiries

9.1.     The Ombudsman may decide to undertake inquiries on his own initiative.

9.2.     The Ombudsman's powers of investigation when conducting own initiative inquiries are the same as in inquiries instituted following a complaint.

9.3.     The procedures followed in inquiries instituted following a complaint also apply, by analogy, to own initiative inquiries.

Article 10  : Points of procedure

10.1.     If the complainant so requests, the Ombudsman classifies a complaint as confidential. If he considers that it is necessary to protect the interests of the complainant or of a third party, the Ombudsman may classify a complaint as confidential on his own initiative.

10.2.     If he considers it appropriate to do so, the Ombudsman may take steps to ensure that a complaint is dealt with as a matter of priority.

10.3.     If legal proceedings are instituted in relation to matters under investigation by the Ombudsman, he closes the case. The outcome of any inquiries he has carried out up to that point is filed without further action.

10.4.     The Ombudsman informs the relevant national authorities and if appropriate, a Community institution or body of such criminal law matters as may come to his notice in the course of an inquiry. The Ombudsman may also inform a Community institution or body of facts which, in his view, could justify disciplinary proceedings.

Article 11  : Reports to the European Parliament

11.1.     The Ombudsman submits an annual report to the European Parliament on his activities as a whole, including the outcome of his inquiries.

11.2.     As well as special reports made under Article 8.4 above, the Ombudsman may make such other special reports to the European Parliament as he thinks appropriate to fulfil his responsibilities under the Treaties and the Statute.

11.3.     The annual and special reports of the Ombudsman may contain such recommendations as he thinks appropriate to fulfil his responsibilities under the Treaties and the Statute.

Article 12  : Cooperation with ombudsmen and similar bodies in Member States

The Ombudsman may work in conjunction with ombudsmen and similar bodies in the Member States with a view to enhancing the effectiveness both of his own inquiries and of those carried out by ombudsmen and similar bodies in the Member States and of making more effective provision for safeguarding rights and interests under European Union and European Community law.

Article 13  : The complainant's right to see the file

13.1.     The complainant shall be entitled to see the Ombudsman’s file on his or her complaint, subject to Article 13.3 below.

13.2.     The complainant may exercise the right to see the file on the spot. He or she may request the Ombudsman to supply a copy of the whole file, or of specific documents in the file.

13.3.     The complainant shall not have access to:

(a)    documents or information obtained by virtue of Article 5.1 or 5.2 above which have been identified to the Ombudsman as confidential;

(b)    evidence given in confidence in accordance with Article 5.3 above.

Article 14  : Public access to documents held by the Ombudsman

14.1.     The public shall have access to documents held by the Ombudsman, which do not relate to inquiries, subject to the same conditions and limits as those laid down by Regulation (EC) No 1049/2001 (4) for public access to European Parliament, Council and Commission documents.

14.2.     The public may request access to inquiry-related documents held by the Ombudsman, provided that the complaint has not been classified as confidential at the request of the complainant, or by the Ombudsman pursuant to Article 10.1 above. Access shall not be given to:

(a)    documents or information obtained by virtue of Article 5.1 or 5.2 above which have been identified to the Ombudsman as confidential;

(b)    evidence given in confidence, in accordance with Article 5.3 above;

(c)    those parts of its opinion and replies to any further inquiries which, in accordance with Article 4.5 above, the institution concerned has requested should be disclosed only to the complainant. The applicant shall be informed of the reason or reasons which the institution concerned has given for its request;

(d)    a document the disclosure of which would prejudice the integrity of an on-going inquiry.

14.3.     Applications for access to documents shall be made in writing (letter, fax or e-mail) and in a sufficiently precise manner to enable the document to be identified.

14.4.     Access is given on the spot or by providing a copy. The Ombudsman may impose reasonable charges for the supply of copies. The method of calculation of any charge is explained.

14.5.     Decisions on applications for public access are made within 15 working days from receipt. In exceptional cases, the time-limit may be extended by 15 working days; the applicant is notified in advance of the extension and detailed reasons are given.

14.6.     If an application for access to a document is refused in whole or in part reasons are given for the refusal.

Article 15  : Languages

15.1.     A complaint may be submitted to the Ombudsman in any of the Treaty languages. The Ombudsman is not required to deal with complaints submitted in other languages.

15.2.     The language of proceedings conducted by the Ombudsman is one of the Treaty languages; in the case of a complaint, the language in which it is written.

15.3.     The Ombudsman determines which documents are to be drawn up in the language of the proceedings.

Article 16  : Publication of reports

16.1.     The European Ombudsman shall publish in the Official Journal announcements concerning the adoption of annual and special reports, making public the means for all interested to have access to the full text of the documents.

16.2.     Any reports or summaries of the Ombudsman’s decisions concerning confidential complaints are published in a form that does not allow the complainant to be identified.

Article 17  : Entry into force

17.1.     The implementing provisions adopted on 16 October 1997 are repealed.

17.2.     This decision shall come into effect on 1 January 2003.

17.3.     The President of the European Parliament shall be informed of the adoption of this decision. An announcement shall also be published in the Official Journal.