The Institution of the Ombudsman

The Treaty of Maastricht created the institution of the Ombudsman which is a dispute resolution system between individuals and European institutions and bodies regarding maladministration. The Ombudsman ‘owed its inspiration to a combination of Spanish enthusiasm for European citizenship and Danish concern for administrative efficiency and fairness’ [1] .

National Ombudsmen already existed in different member States. The European Ombudsman idea was therefore a response to two new developments: the increase of national administrative activity with a high level of regulation such as the social and environmental sector and ‘an extensive delegation of powers to administrative authorities’ [2] . The second development there was an increasing need for individual rights’ protection regarding this administrative extension. It was felt that national ombudsmen could not solve all the problems and that a kind of supra national institution could better protect individuals’ rights.

Maladministration happens if ‘an institution fails to act in accordance with the law, fails to respect the principles of good administration, or violates human rights’ [3] .

The notion of individual covers citizens of a member State of the European Union or a resident of a third-country national as well as business, associations or other bodies with a registered office in a Member State to complain.

The powers of the Ombudsman and its jurisdiction have increased since its creation so that it is noticeable that it can create an overlap on other jurisdictions.

Is the ombudsman a mediator or a judge? Is it an efficient institution? Does it participate to democratize European Union? Are there still weaknesses? How to improve this institution?

We will try to answer to those questions by envisaging the doubt which appears regarding the real nature of the European ombudsman (I) before to wonder if the ombudsman is a well-oiled piece of machinery (II).

I. The extended powers of the ombudsman: a doubt on its real nature?

The powers and functions of the ombudsman are quite important (A) which lead us to wonder if the Ombudsman is really a mediator or a judge (B).

A. powers and functions

1. Role and power

The powers and functions of the European Ombudsman are provided by article 228 of the treaty on the functioning of the European Union (ex article 195 EC treaty). It has to receive complaints from citizens of the member states or resident third-country nationals regarding instances of maladministration. Maladministration is a term which has to be considered widely: ‘Breaches of principles of good administration, courtesy, efficiency, timeless and accuracy are all considered forms of maladministration’. [4] Since the Ombudsman has to deal with problems between institutions and individuals, it is of crucial importance that he be independent and does not have any political role. This is provided by article 228 of the treaty on the functioning of the European Union. Nevertheless, we can notice a paradox: this independence in the exercise of its duties seems to be hard to attain and protect since the European Ombudsman is appointed by the European Parliament for the same time of its mandate and is under its authority. Thus, the Parliament could try to provide him a more political role which would compromise its independence.

2. Jurisdiction

Regarding the jurisdiction of the European Ombudsman, it has been extended by the Amsterdam Treaty with express jurisdiction over community institutions and bodies engaged in third pillar activities regarding police and judicial protection criminal matters.

The European ombudsman has to protect the citizens’ rights; the question therefore arising is what kinds of rights are protected? We can divide the rights in two main categories: The procedural rights and the substantive right. The substantive rights are basic human rights possessed by people in an ordered society. [5]

The Ombudsman is dealing more with procedural rights since the substantive rights are supposed to be protected by the national courts, the Court of Justice of the European Union and the European court of human rights. Nevertheless we will notice later that it appears an overlap between the functions of the ombudsman and the institutions which leads to the necessity that the European institutions work together on a good faith.

To be precise, the procedural rights are the right to good administration which is ‘to receive fair, just, equitable and considerate treatment at the hands of officials who exercise public powers in relation to any substantive rights’ [6] . The second right is the one ‘to complain, to be heard and to have corrective action if one has suffered harm from government’ [7] .

3. The proceeding

The Ombudsman owns a variety of powers: he has extended powers of investigations because he can require that community institutions and bodies supply information or documents of an enquiry. What we understand by enquiry is an official investigation done by the European Ombudsman to gather information.

What is interesting is that the ombudsman can start the enquiry from its own initiative which is a strong power. Nevertheless, so far, he has always justified such a measure by pointing out the increasing number of complaints on a particular point. ‘In so doing, he poses as the “defender” of citizens rather than the autonomous custodian of some general principles’. [8]

It is also up to the Ombudsman to decide whether an inquiry is admissible.

If the Ombudsman found maladministration, the first step is to cooperate with the institution to find a friendly solution in order to eliminate the wrong-doing. It is indeed, more interesting to cooperate and to reach a solution rather than punish so that the institution will feel less threaten by him and we can consequently assume that the institution will be more willing to take into account its remarks. It also helps to establish a guideline of a good administrative practice, and in that case, ‘soft law’ appears as strength.

There are different ways of establishing this soft law: The European Ombudsman can make a critical remark if he considers ‘that the institution cannot eliminate the maladministration and if it does not have general implications’. [9] A report with draft recommendations to the institution concerned can be decided by the European Ombudsman if he considers either that the institution can eliminate the instance of maladministration or the instance of maladministration has general implications. Such a draft recommendation has for purpose to establish guidelines for good administration practice to avoid that the maladministration happens again.

Then the institution will send a detailed opinion expressing the acceptance of the Ombudsman’s remarks and the way the institution will implement the draft recommendations. It has to be done within three months.

Either the Ombudsman will consider that the detailed opinion is satisfactory or is not satisfactory. In the latter case, he can write a special report to the European Parliament in relation to the instance of maladministration. The report may contain recommendations. [10]

B. Mediator or judge?

1. The quasi-judicial review power.

The Ombudsman has quasi-judicial review powers. It means that ‘he has powers resembling to those of a court of law or judge’. [11] When he is using these powers, we can consider that he is acting more like a judge than a mediator. Indeed, he is explaining why the institution did not act in accordance with the law and the principles of good administration. If the maladministration can be eliminated, then he will give recommendations. [12]

Thus we can wonder what is really differentiating the Ombudsman from a judge. On the one hand, we noticed that his power to make inquiries is wider that the one of the Court. This very important power makes all the interest of this institution and helps to its effectiveness. On the other hand, to consider the Ombudsman as a judge would be exaggerated because he does not have coercive means, he cannot impose sanctions and give financial penalties. The apparent strength of his office thanks to the enquiry and his wide investigation powers is therefore counterbalanced by this weakness. Nevertheless, his area of action has been extended. For instance, the ombudsman considers that protecting human rights is a fundamental part of its area of action.

Human rights protection has been extended within European Union law and the Ombudsman considers that it is part of his mandate, explaining that a ‘violation of the rights in the Charter of fundamental rights constitutes maladministration’. [13]

Article 6 of the treaty on the European Union provides that the Union is founded on respect of human rights and the European Ombudsman affirmed ‘that community institutions and bodies are to respect the fundamental Human Rights’. [14] Not respecting human rights would therefore be considered as maladministration.

We notice that he is overlapping on the national court’s powers or even the European court of human rights’ powers in doing so and that he is acting like a judge.

Nevertheless, it is counterbalanced by the fact that he does not have the same powers as a judge. On the other hand, the wide interpretation of what constitutes maladministration allows him to establish guidelines and general principles which demonstrate a certain power. This power is strong if the institutions follow the guidelines and recommendations. Although this is not compulsory, it is in the interest of the institutions to follow it in order to reach more accountability. Indeed, it is often reproached to the European Union to have a lack of accountability, democracy and even legitimacy.

This way, we can affirm that this particular power of the ombudsman is efficient to reach more accountability.

2. The investigative powers: the heart of the ombudsman’s powers.

The investigative powers of the European Ombudsman are really important and the latter ‘attempt to capitalize on his growing institutional stature and strengthen his investigative capacity’. [15]

The treaty framers realized that the scope and nature of the Ombudsman’s investigative competence could cause controversy; the institutions could feel threaten by it. Therefore, there is no reference to the investigating powers of the ombudsman in the treaty articles.

We can divide the investigative powers into two categories: horizontal and vertical. The horizontal powers apply to cases where the crucial information or files originate from Community authorities. The latter are obliged to give to the Ombudsman the documents he requires.

Nevertheless, the institutions can object grounds of secrecy and officials continue to be bound by their duty of professional secrecy.

We can distinguish two types of vertical powers of the Ombudsman. First of all, the direct power regarding the relation between the ombudsman and the national authorities. They have to provide the information that the Ombudsman needs. We can therefore consider it as direct vertical investigative power.

The indirect vertical investigative power concerns documents originated from a Member State but which are held by a community institution or body. If they are secret, the Member State concerned has to give his accord.

We can draw some consequences from these powers: the hearing of witnesses is possible only on the horizontal level. Moreover, the Ombudsman’s ‘indirect powers can be challenged only on grounds of secrecy whereas the direct vertical powers can be limited by confidentiality consideration as well’ [16] .

It is possible to argue that the ombudsman is not really using a panel of tools. In most of the cases, the Ombudsman seems to be satisfied with the information provided by the complainant and the institution. It can be considered as a passive role whereas he could have used for instance appeals to the public for submission of observations in relation to inquiries.

The European Ombudsman owns a variety of powers which could spread a doubt on his real nature. Nevertheless, he is definitely a mediator. It is now important to wonder if the Ombudsman is an efficient institution.

II. The ombudsman ‘a well-oiled piece of machinery’ [17] ?

If it is undeniable that the European Ombudsman has some efficiency (A), we cannot exclude some critics and envisage some solutions to improve this institution (B).

A. The efficiency of the ombudsman

The ombudsman has been established to construct the relationship between Europe and citizens in order to enhance the social legitimacy of the European Union.

Sometimes, his role of mediator leads him to take initiatives with political implications. For instance, in the age limit case, the Ombudsman asked to the institutions to justify their recruitment policy. Some age limits were definitely not justified and were discriminatory; therefore it was contrary to the treaties. He asked to the Commission to suppress all age limits by referring to the Court of Justice of the European Union (ex ECJ) jurisprudence.

The consequence we can draw is that the strength of its influence is principally his moral authority and publicity. Nevertheless, is it efficient enough?

It can be argued that the most important drawback is that the administration concerned does not have to follow his recommendations. The institution is therefore just taking the risk that the ‘wrong-doing’ will be made public by the Ombudsman and the institution’s image will be damaged. Therefore, what would be the interest of the institutions to follow his recommendations? The answer has to be found in the accountability concept. Building the European Union has to be directly related to citizens. The European Ombudsman gives accountability by giving the opportunity to citizens to defend their rights regarding the institutions’ administrations. Accountability is then linked to legitimacy and the control operated by the Ombudsman over the institutions, although it does constitute ‘soft-law’ helps to give more legitimacy to the European institutions and prevents them from acting without paying attention to citizens’ rights.

B. critics and solutions?

1. Soft law and good will of the institutions

Although we have noticed a certain influence of the European Ombudsman, not everything that he called for has been done. For example the code of Good administrative behaviour of 2001 [18] is still not a legally binding norm even though many Union’s institutions have adopted some parts of it. This code constitutes soft law and we can recognize that the ‘Ombudsman has taken the role of controller of “maladministration” and of codifier of “good administration”’ [19] . Even though it could be envisaged that the code is inefficient because it is soft law, the Code has gained prominence and has been adopted by many institutions thanks to the ombudsman’s inquiry. It also proves once again that soft law has to be distinguished from the notion of efficiency itself.

Nevertheless, the European Ombudsman and its efficiency could still be improved. In 2008, 53 demands of the ombudsman have been done and in 38 per cent of the demands the ombudsman has not been satisfied by the answer or the application of the European institutions. [20] The Ombudsman is therefore blocked by the “institutional wall” and it could be argue that it is the only weakness of the institution and that the real problem is the European institutions and to which extend they respect the Ombudsman’s remarks and recommendations and to which extend they are willing to improve the accountability of the European Union.

For instance, although his area of action regarding his investigations seems to be wide, an important deficiency can be highlighted. The inspection of the files he requires is possible only if there is a previous agreement concluded between his services and the authority concerned. It is therefore obvious that his action is undermined and diminishes his efficiency.

Moreover, the European ombudsman action is also compromised by the rules governing the officials. Indeed, the officials are prohibited from providing information that could corroborate allegations of maladministration.

It might produce the rather awkward result that Community officials are prohibited from orally disclosing information that the Ombudsman could have obtained if it were contained in a document. [21]

Regarding the institutions, we can envisage them as the biggest wall to the action of the European Ombudsman. Indeed, even though this bureaucracy is most of the time cooperating with the Ombudsman’s investigations, it is noticeable that the Commission has obviously preventing the investigative process from being efficient by impeding the Ombudsman from examining crucial documents arguing unjustifiably secrecy clause.

2. Secrecy clause and transparency

Another issue is noticeable regarding the secrecy clause. There is no text providing a clear definition of the secrecy. It could appear to be profitable to the European Ombudsman since he could extend his interpretation but in the meantime, it could lead to uncertainty and more importantly create distrust of institutions. Then, we can imagine that the latter would be less willing to help the ombudsman to carry his mission. The problem of secrecy itself definitely undermines the ombudsman’s powers because some documents are necessary for his inquiries and he cannot have access. It raises difficult questions. The ombudsman is supposed to help to create more legitimacy and transparency but how is that possible that a citizen trust it when he knows that certain elements have not been considered during the investigations because they were protected by the secrecy clause? And it becomes impossible for the ombudsman to perform the task if he does not have access to fundamental importance documents. In its report in 1998, the Ombudsman pointed out the problem of the secrecy clause and presented some amendments such as access to all the files that were necessary for his inquiries. The European Parliament made very interesting proposal exceeding what the Ombudsman had called for and that meant in practice that the Ombudsman would gain access to documents originating from Member States and held by Community institutions or bodies without being obliged to seek the prior consent of the Member State concerned. Unfortunately, the proposals failed.

Later on in 2006, the Ombudsman pointed out two main and recurrent issues. He suggested the complete ban of the secrecy clause from the inspection of files on the horizontal plane, but advised against any such amendment to his indirect vertical powers as unnecessary. He also asked to suppress the restrictions imposed on the Community officials who are hear as witnesses, so that they can provide complete and truthful information. Therefore regarding the investigative powers of the European Ombudsman, we can draw a major conclusive point: The investigative powers should be revised so that they would be more efficient by suppressing the secrecy clause.

The Ombudsman principle was to help to institute the idea of democracy in Europe. It helps making the democratic idea a political reality because its role is to secure the accountability of the institutions towards the citizens. Moreover the ombudsman permits a dialogue with the citizens so that they can feel more concerned by the Europe. To function efficiently transparency is thus the necessary condition of democracy so that citizens can obtain clear and precise information about their rights and duties. Nevertheless, the most frequent type of maladministration found in Ombudsman proceedings is lack of transparency which includes the refusal of access to documents. The purpose of transparency is to include citizens in the activities of the European Union public authority. The access to documents is therefore an element of public interest.

Conclusion

A possible argument against the European Ombudsman would be that Ombudsmen are already established through most of the European Countries and therefore that the European Ombudsman is not really necessary. Nevertheless it is necessary to recall that European administration is a very specific type of administration and therefore such an institution is needed. Moreover his role took more and more importance and he can now be seen as the coordinator of the ombudsmen through a liaison network of various national and local ombudsmen. This network has been expanded since 1997 to include national and regional ombudsmen. [22]

Through the years, the European Ombudsman has acquired a social and political role.

His mediating approach aims to encourage the participation of all the citizens in all proceedings in order to claim their rights. Regarding the judicial protection of those citizens’ rights, the European Ombudsman has a lot of advantages because it is fast and cost-free.

Would that make the institution stronger if the Ombudsman had exactly the same powers as a judge? As far as I am concerned I do doubt about it. First because it would be overlapping on other court’s jurisdiction, then because where soft law can be seen as a weakness, I see a strength allowing establishing a real dialogue with the European institution. Finally, it is already in the interest of the institutions to follow Ombudsman’s advices, remarks and recommendations to reach the purpose of a more transparent administration of the European Union.

Nevertheless I would conclude by saying that the European Ombudsman lacks two important powers: ‘the power to formally trigger law reforms and the power to refer suspected illegalities to Community courts’ [23] . Moreover the Ombudsman acts in a supranational and transnational context which increases the specificity of the problems to solve. The European Ombudsman has to face the European administration which is particular because of its nature. It is also noticeable that national ombudsmen in many member States have more influence because their actions are enhanced by a strong national Parliament which is the opposite with the European Ombudsman.

On 20 January 2010, P. Nikiforos Diamandouros was re-elected as European Ombudsman by the European Parliament. The Ombudsman has announced his different priorities for the next five years which are to ensure that citizens profit fully from the Treaty of Lisbon and the Charter of Fundamental Rights, to strengthen a “culture of service” to citizens within the EU administration; and to further improve the effectiveness and efficiency of the Ombudsman’s office. [24] Hopefully, these improvements will be quickly and efficiently realized.