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Published online by Cambridge University Press: 27 October 2017
The office of European Ombudsman was created by the Treaty of Maastricht. The first Ombudsman, Jacob Söderman, began work in September 1995. To judge by the number of requests for materials and interviews that the office receives, particularly from students, academic lawyers are well aware of the existence of the European Ombudsman. There is also a growing body of literature about the office. Many practising lawyers, however, remain uncertain about the scope and functions of the work of the European Ombudsman. This is partly because the concept of an ombudsman is not always well understood, even by specialists in public law. This article will explain what an ombudsman is, the relationship between the European Parliament and the European Ombudsman, and the nature of the latter’s work. The aim is to persuade colleagues working in the field of European public law that the office of the European Ombudsman is well worth monitoring.
1 See generally: Gosalbo Bono, R. “Maastricht et les citoyens: le Médiateur européen”, 64 (1992) Revue française d’administration publique 639 Google Scholar; Pliakos, A.D. “Le médiateur de l’Union européenne”, 5 (1994) Cahiers de droit européen 563 Google Scholar; Marias, E. The European Ombudsman (Maastricht, European Institute of Public Administration, 1994 Google Scholar); Bonnor, P.G. “The European Ombudsman: A Novel Source of Soft Law in the European Union,” 25 (2000) ELRev 39 Google Scholar; Davis, R. W. “Quasi-judicial review: the European Ombudsman as an alternative to the European courts” 1 (2000) Web JCLI Google Scholar; Heede, K. European Ombudsman: redress and control at Union level (The Hague, Kluwer Law International, 2000 Google Scholar) European monographs nr. 24; Seneviratne, M. “The European Ombudsman: the first term”, 22 (2000) J Soc Wel & Fam L 329 CrossRefGoogle Scholar. Aspects of the Ombudsman’s work are discussed in: Kunzlik, P. and Jacobson, B. “The enforcement of EU environmental law: Article 169, the Ombudsman and the Parliament” 6 (1997) European Environmental Law Review 46 Google Scholar; Öberg, U. “Public Access to Documents after the entry into force of the Amsterdam Treaty: Much Ado About Nothing?”, Vol. 2 N° 8 (1998)Google Scholar: http://eiop.or.atleiopltexte/1998-008.htm European Integration Online Papers; Rawlings, R. “Engaged elites, citizen action and institutional attitudes in Commission enforcement” 6 (2000) ELJ 4 CrossRefGoogle Scholar. See also the 4th report of the House of Lords Select Committee on the European Communities, HL 18 (Session 1997-98) The European Ombudsman.
2 The word ombudsman is used throughout this article in a gender-neutral sense.
3 See the Swedish Instrument of Government, ch. 11, Art. 6 (Chancellor of Justice) and ch. 12 Art. 6 (Ombudsmen). The election of the Ombudsmen is governed by the Riksdag Act, ch. 8, Art. 10. For Finland, see the 1999 Constitution, s. 38 (Ombudsman) and s. 69 (Chancellor of Justice). Both the Finnish Chancellor of Justice and the Ombudsman are vot ing members of the International Ombudsman Institute.
4 A constitutional amendment was adopted in 1953 and implementing legislation was enacted in 1954. The first ombudsman took office in 1955. See Hurwitz, S. “The Danish Parliamentary Commissioner for civil and military administration” (19581) Public Law 236 Google Scholar.
5 Information taken from the website of the International Ombudsman Institute: http://www.law.ualberta.ca/centres/ioi
6 As used here, the terms national, regional and local refer to the level of government for which the ombudsman is competent, rather than the territorial area in which the ombudsman functions. The two do not always coincide: the New Zealand ombudsmen, for example, deal with national, regional and local government throughout New Zealand. For the same reason, classification of ombudsmen as national, regional or local does not fit neatly with the consti tutional arrangements of the United Kingdom, either before or after devolution. The website of the European Ombudsman contains links to national and regional ombudsmen in the Member States and to national ombudsmen in the accession States.
7 Art. 6 of Loi 73-6 du 3 janvier 1973, as modified by Loi 2000-321 of 12 avril 2000; Parliamentary Commissioner Act 1967, s. 5 (1). Note that citizens may approach directly the délégués départementaux of the Médiateur de la République.
8 Oosting, M. “The annual report of the ombudsman” speech to the Sixth Meeting of European National Ombudsmen, Jerusalem, 9-11 September 1997>Google Scholar; Fernhout, R. “Establishment of the institution of Ombudsman” speech to a conference on the Role and Institution of Ombudsman, Prague, 27-28 April 2000 Google Scholar. Both speeches are available on the website of the National Ombudsman of the Netherlands: http://www.ombudsman.nl
9 Parliamentary Commissioner Act 1967, s. 1 (2); Loi 73-6 du 3 janvier 1973, Art. 2.
10 In the European Union, Luxembourg and Germany both have a committee on petitions at the national level, but no ombudsman. Austria, Belgium, Greece, the Netherlands and Portugal have both an ombudsman and a committee on petitions. On the European Parliament’s Committee on Petitions see below, Part III B (ii).
11 The first published use of the word ombudsmania that I have found is in Lord Woolf’s 1996 Tom Sargant memorial lecture “Civil Justice is important as well” available on the inter net at: http://website.lineone.net/~passy34/woolr.htm
12 No 9, septembre—octobre 2000 Médialogue.
13 Denmark and New Zealand is a notable exception: see respectively: Ombudsman Act 1996, Act no. 473, 12 June 1996, s. 30; Ombudsmen Act 1975, s. 28A.
14 Membership criteria are explained on the websites of these organisations: http://www.bioa.org.uk; http://www.law.ualberta.ca/centres/ioi/; http://www.usombudsman.org
15 Gottehrer, Dean M. and Hostina M. “Essential Characteristics of a Classical Ombudsman”, 1998 (available on the websites of the American Bar Association and the United States Ombudsman Association).
16 Söderman, J. “Is there a classic parliamentary Ombudsman?” speech to the Austrian Ombudsman Board (Volksanwaltschaft), 4 June 1997 Google Scholar, http://www.euro-ombudsman.eu.int/speeches/en/austrial.htm
17 James, R. Private Ombudsmen and Public Law (Aldershot, Ashgate, 1997)Google Scholar; Mowbray, A. R. “Ombudsmen: the private sector dimension” in Finnie, W. Himsworth, C.M.G. and Walker, N. (eds.) Edinburgh Essays in Public Law (Edinburgh, Edinburgh University Press, 1991 Google Scholar). Seneviratne remarks that the introduction of ombudsmen in the private sector “exacer bates confusion and uncertainty about role of public sector ombudsmen”. See Seneviratne, M. Ombudsmen in the Public Sector (Milton Keynes, Open University Press, 1994)Google Scholar.
18 Commission Recommendation of 30 March 1998 (98/257/CE) on the principles applica ble to the bodies responsible for out-of-court settlement of consumer disputes, OJ 1998 L 115/31. See also Council Resolution of 25 May 2000 on a Community-wide network of national bodies for the extra-judicial settlement of consumer disputes, OJ 2000 C 155/01.
19 Commission Press release IP/01/152, 1 February 2001.
20 Lewis, N. and Birkinshaw, P. When Citizens Complain: reforming justice and administration (Milton Keynes, Open University Press, 1993 Google Scholar).
21 See, for example, the Irish Ombudsman’s Annual Report 1996 and guide to internal complaints procedures Settling Complaints, published in April 1998 and available on his website: http://www.irlgov.ie/ombudsman/2336_156.htm
22 See e.g. the report of the US General Accounting Office on the role of ombudsmen in helping management to deal with complaints from employees: Human Capital: The Role of Ombudsmen in Dispute Resolution, April 2001.
23 I have drawn here on the distinction between internal and external audit. It is worth noting that the Institute of Internal Auditors insists on independence (meaning operational independence) also being a necessary aspect of internal audit.
24 The classic account of équité is to be found in the Annual Report for 1991 of then Médiateur Paul Legatte.
25 Art. 9 of loi no 73-6 du 3 janvier 1973 as amended by loi 2000-321 du 12 avril 2000 relative aux Droits des citoyens dans leurs relations avec les administrations.
26 Utley, T. E., Occasion for Ombudsman (Christopher Johnson, 1961), ch. 2.Google Scholar
27 Parliamentary Commissioner Act 1967, s. 5 (2).
28 The Administration and You: a handbook (Strasbourg, Council of Europe, 1996), 44 Google Scholar.
29 Monette, Pierre-Yves “De la médiation, comme mode de résolution de conflits, et de ses différentes applications”, n°1/1999, Bruylant, Ed., Brussels, Administration publique.Google Scholar
30 On the work of the délégués départementaux, see the 1999 Annual Report of the Médiateur de la République.
31 see Marias above n. 1, Heede above n 1.
32 European Parliament decision 94/262 of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties, OJ 1994, L 113/15.
33 The text of the implementing provisions and of the Statute of the Ombudsman, in all official languages, are published on the Ombudsman’s Website: http://www.euro-ombudsman.eu.int
34 Rule 177.
35 Decision 95/376/EC/Euratom/ECSC of the European Parliament of 12 July 1995 appointing the Ombudsman of the European Union, OJ 1995 L 225/17; Decision 1999/780/EC/Euratom/ECSC, of the European Parliament of 27 October 1999 appointing the Ombudsman of the European Union, OJ 1999 L 306/32.
36 Statute, Art. 7 (3).
37 Order of the President of the Court of First Instance of 18 August 1995 in Case T-146/95R Giorgio Bernardi v. European Parliament, [1995] ECR-II 2255, para. 18. The practice adopted in 1999, by analogy with that for Commissioners, is not to require the oath to be taken again by an Ombudsman who is re-elected.
38 See the Crowley Report on the amendment of Rule 161 of Parliament’s Rules of Procedure, A4-0416/97, 16 December 1997 and Art. 8.4. and 8.5 of the Implementing Provisions.
39 See Case 511/99, decision of 26 April 2001.
40 See the Voggenhuber report on amendment of Rule 161(2) of Parliament’s Rules of Procedure concerning the activities of the Ombudsman, A4-0016/99, 21 January 1999.
41 See the Thors report A4-0265/98, 2 July 1998.
42 See generally on the right to petition: Marias, E. “The Right to Petition the European Parliament after Maastricht,” 19 (1994) ELRev 169 Google Scholar.
43 See the report of the Committee on its deliberations during the parliamentary year 1998–1999, A4–0117/99, 18 March 1999 (Rapporteur: Edward Newman).
44 For the agreement, see the Ombudsman’s 1995 annual report and the report of the Committee on Petitions on that report (rapporteur Nuala Ahern), A4-0176/96, 30 May 1996. The number of transfers is generally quite low. In the three years 1998-2000, only seven peti tions were transferred to the Ombudsman in total. In the other direction, 10 complaints were transferred in 2000, 71 in 1999 and three in 2000.
45 For example, the own-initiative inquiry in the Italian milk quotas case, OI/1/99/IJH/COM, decision of 12 September 2000.
It seems useful to add here a general note on the reporting of the Ombudsman’s decisions. Since 1997, complaints to the Ombudsman are registered by number, year and initials of the legal officer responsible for dealing with the complaint. Cases registered in 1995-6 received more complex registration codes. Own-initiative inquiries are registered in a separate series, with the prefix OI. Queries from national ombudsmen (see Part V A (ii) below) are also registered separately with the prefix Q. For purposes of citation of the decisions closing inquiries, it is sufficient to refer only to the number and year to identify each case uniquely. This information also enables cases to be identified in the online index of decisions at http://www.euro-ombudsman.eu.int. All the Ombudsman’s decisions made since 1 July 1998 are available on the web, as well as some earlier cases. A selection of decisions is also published in the Ombudsman’s Annual Reports, cited here as EOAR.
46 Financial Regulation as amended by Council Regulation 1923/94 of 25 July 1994, OJ 1994 L 198/4.
47 Council Regulation 2673/1999 of 13 December 1999, OJ 1999 L 326/1.
48 Council Regulation 1354/96 of 8 July 1996, OJ 1996 L 175/1.
49 For examples, see n 106 below.
50 Implementing provisions, Art. 13.
51 The procedure is explained in 1998 EOAR, s. 2.9.
52 Art. 4 of the Statute, which also refers to Art. 287 EC.
53 See e.g. Case 1087/96, 1998 EOAR 41.
54 Case 995/98, decision of 30 January 2001.
55 Case 1140/97, 1999 EOAR 83 and Case 995/98 above n 54.
56 1999 EOAR 24.
57 The Ombudsman was later able to clarify the point in question without formal testimony from the Commissioner.
58 European Parliament resolution of 6 September 2001, amending Art. 3 of the regulations and general conditions governing the performance of the Ombudsman’s duties (1999/2215(ACI)). See also the report of the Constitutional Affairs Committee (rapporteur, Teresa Almeida Garrett) A5-0240/2001-PE 294.729DEF.
59 See Case 588/97, 1998 EOAR 244.
60 See Case 1109/96, 1998 EOAR 157 and Case 288/99, 2000 EOAR 132.
61 Cases 1053/96, 1998 EOAR 167; 1056/96, 1998 EOAR 172; 1057/96, 1998 EOAR 178; 634/97, 1998 EOAR 186.
62 See Cases 916/2000 and 917/2000, draft recommendations of 1 March 2001 and Cases 271/2000 and 277/2000, draft recommendations of 12 March 2001.
63 Other possible reasons for closing a case are that: the complainant drops the case; the alleged facts become the subject of legal proceedings (Art. 2 (7) of the Statute); the Ombudsman discovers during the inquiry that the complaint is outside the mandate or inad missible, or that there are no grounds for him to continue his inquiry because another compet ent body is also dealing with the matter.
64 See, for example, Cases 271/2000 and 277/2000, decision of 31 May 2001.
65 On the significance of the power to prosecute officalsofficials in the case of the Finnish Ombudsman see the judgment of the European Court of Human Rights of 16 December 1997 in Raninon v. Finland, 152/1996/771/972.
66 Statute, Art. 4 (2).
67 Gottehrer and Hostina, above n 15. For the French Médiateur de la République, for example, see the Retail decision of the Conseil d’Etat of 10 July 1981. However, decisions of the UK Parliamentary Commissioner for Administration are subject to judicial review: R v. Parliamentary Commissioner for Administration ex p Dyer [1994] 1 All ER 375; R v. Parliamentary Commissioner for Administration ex p Balchin [1997] JPL 917; R. v. Parliamentary Commissioner for Administration Ex p. Balchin (No.2) [2000] JPL 267.
68 Order of the Court of First Instance of 22 May 2000 in Case T-103/99, Associazione delle Cantine Sociali Venete v. European Ombudsman and European Parliament (not yet reported). The proceedings, brought under Art. 232 EC were held inadmissibiebile because the Ombudsman is not mentioned as a possible defendant under that Article and because an action for failure to act could only succeed if a report by the Ombudsman to the European Parliament would constitute an act that could be attacked under Art. 230, which is not the case because the recommendations which the Ombudsman is entitltedentitled to make do not have binding effect. Note also pending Case T-209/00, frank Lamberts v. European Ombudsman and European Parliament.
69 OJ 1997 C 286/41.
70 The European Parliament welcomed the definition in its resolution on the 1997 annual report: OJ 1998 C 292/168. Note however that the Council sought to argue in Case 916/2000 that review of the legality of a decision refusing access to a document does not fall within the remit of the Ombudsman’s competencies;: see the Ombudsman’s draft recommendation of 1 March 2001.
71 For the Code, see Part VI B.
72 See Case 449/96, 1998 EOAR 46 and OI/3/99, 1999 EOAR 17-19. The final decision in the latter inquiry is dated 27 October 2000.
73 Case 48/65 Lütticke v. Commission [1966] ECR 19.
74 Case C-191/95 Commission v. Germany [1998] ECR 1-5449, para. 46; Case 247/87 Star Fruit v. Commission [1989] ECR 291; Case 87/89 Sonito v. Commission [1990] ECR-I 1981; Order of the Court of First Instance in Case T-182/97 Hubert Ségaud and Monique Ségaud v. Commission [1998] ECR 11-0271.
75 Case 303/97,1997 EOAR 270.
76 Case 161/99, decision of 13 September 2000, not reported
77 See Cases 175/97, 1998 EOAR 95; 176/97, 1998 EOAR 97; 995/98 (Thessaloniki Metro) decision of 30 January 2001.
78 See, for example, Case 601/99, 2000 EOAR 113.
79 This position was first formulated in Case 768/96,1998 EOAR 199.
80 For example, Case 506/99, 2000 EOAR 70.
81 See Cases 817/96, 1998 EOAR 57; 1040/96,1998 EOAR 78; 1037/97, 1999 EOAR 73.
82 Case 489/98, 2000 EOAR 188. Note also, however, Case 540/98, 2000 EOAR 145, in which the Commission refused to answer the complainant’s claim of non-contractual liability.
83 See for example Cases 1109/96, 1998 EOAR 157; 390/99, 2000 EOAR 129.
84 Above n 35.
85 Art. 195 EC, Art. 107d ECSC, Art. 20d Euratom.
86 Case 1087/96, 1998 EO AR 41. The Court of First Instance subsequently used the same analysis in a case in which its own jurisdiction was contested on the same ground; Case T-174/95 Svenska Journalistförbundet v. Council [1998] ECR 11-2289, paras. 85 and 86.
87 Art. 41 TEU.
88 OI/1/99. The inquiry led to a draft recommendation to Europol to adopt rules, which Europol accepted: 2000 EOAR 194.
89 Case 126/97, 1998 EOAR 17.
90 Community Plant Variety Office; European Agency for the Evaluation of Medicinal Products; European Agency for Safety and Health at Work; European Centre for the Development of Vocational Training (Cedefop); European Environment Agency; European Foundation for the Improvement of Living and Working Conditions; European Monitoring Centre for Drugs and Drug Addiction; European Monitoring Centre on Racism and Xenophobia; European Training Foundation; Office for Harmonisation in the Internal Market; Translation Centre for Bodies of the European Union.
91 Case 659/2000, 2000 EOAR 99.
92 Case 199/95, 1996 EOAR 35.
93 Case 989/97, 1997 EOAR 20.
94 Case 374/96, 1997 EOAR 19.
95 Case 218/98, 1998 EOAR 17.
96 Cases 911/99; 1113/99, not reported.
97 Cases 199/95, 1996 EOAR 35; 41/97, 1999 EOAR 41.
98 The total number of new complaints received in 2000 was 1732.
99 Art. 6 of Loi 73-6 du 03 janvier 1973, as amended by Article 26 of Loi 2000-321 du 12 avril 2000: “Le Médiateur européen ou un homologue étranger du Médiateur de la République, saisi d’une réclamation qui lui paraît entrer dans la compétence et mériter l’intervention de ce dernier, peut lui transmettre cette reclamationréclamation.”
100 This procedure was agreed at a seminar for national Ombudsmen and similar bodies held in Strasbourg in September 1996.
101 See e.g. Q5/98—OI/3/99, 2000 EOAR 197.
102 See for example Joined Cases 74/97 and 85/97, 1998 EOAR 36 and Case 760/96 1998 EOAR 150.
103 Including Irish: Art. 21 EC, third indent and Art. 314 EC second indent.
104 Of 1729 new complaints submitted to the Ombudsman in 2000, 79 were from compan ies and 114 from associations.
105 Statute, Art. 2.3; Art. 2.4; Art. 2.8, Art. 2.4.
106 Case 794/96, 1997 EOAR 129; joined cases 971/96, 1039/96, 1111/96 and 48/97, 1998 EOAR 129; Case 619/98, 1999 EOAR 102.
107 Cases 646/97 and 143/97, 1997 EOAR 29.
108 See for example Cases 739/98 and 867/99, 1999 EOAR 20-1.
109 For an example of the application of both Art. 195 EC and Art. 1 (3) of the Statute see Case 223/98, 1998 EOAR 24.
110 Case T-309/97 The Bavarian Lager Company Ltd v. Commission [1999] ECR-II-3217.
111 Case 375/2000, not reported.
112 See e.g. joined cases 463/96, 770/96 and 1017/96,1997 EOAR 170 and decision of 6 May 1999 on the suspended case 463/96/PD.
113 Case 633/97, 1999 EOAR 234. The case pending before the CFI was T-188/97 Kothmans International v. Commission [1999] ECR-II 2463.
114 Case 916/2000, draft recommendation of 1 March 2001.
115 In relation to the United Kingdom Parliamentary Commissioner for Administration, see Harlow, C. “Ombudsmen in search of a role” 41 (1978) MLR 446 Google Scholar; Harlow, C. and Rawlings, R. Law and Administration 2nd edn. (London, Butterworths, 1997)Google Scholar, ch. 13. For an analysis of the European Ombudsman along these lines see Heede, above n 1.
116 See e.g. Case 1045/96, 1998 EOAR 154.
117 See e.g. Cases 916/2000 and 917/2000, in which the Ombudsman made draft recom mendations to the Council on 1 March 2001.
118 I deal with the significance of access to information and documents more fully in “Citizenship and information”, 7 European Public Law, 165-193 (2001).
119 See joined complaints 971/96, 1039/96, 1111/96 and 48/97, 1998 EOAR 129; Case 794/96 1997 EOAR 129; Case 619/98, 1999 EOAR 102.
120 Case 1086/97 1999 EOAR 81.
121 Case 225/99, 2000 EOAR 60.
122 n 54 above
123 The own-initiative power has also been used:
(i) if the Ombudsman considers that an allegation of maladministration made in a complaint should be investigated despite the fact that the complaint does not meet all the conditions of admissibility, or is submitted by a non-citizen or non-resident;
(ii) to enable the Ombudsman to investigate an allegation of maladministration without revealing the identity of the complainant to the institution concerned;
(iii) where appropriate, following the transmission to the Ombudsman of the file on a petition which the Committee on Petitions has examined;
(iv) where appropriate, following the reply of a Community institution or body to a query from a national ombudsman.
124 Own-initiative 616/96, Special Report of 15 December 1997, OJ 1998 C 292/170 and OI/1/99, 1999 EOAR 245 (access to documents); Own-initiative 303/97, 1997 EOAR 270 (infringement procedure); 626/97,1998 EOAR 259 (age-limits in recruitment); 1004/97, Special Report of 18 October 1999 (secrecy in recruitment); OI/1/98 Special Report of 11 April 2000 (Code of Good Administrative Behaviour); OI/5/99, decision of 16 February 20010 (late pay ment).
125 See Case T-231/97, New Europe Consulting and Michael P. Brown v. Commission [1999] ECR 11-2403. «Le principe de bonne administration» in the case law of the Community courts, is variously translated into English as “good”, “proper” or “sound” administration. See also Usher J. A. “The ‘good administration’ of European Community law”, (1985) Current Legal Problems 269.
126 See generally OECD, Administration as Service: the Public as Client, (OECD, 1987 Google Scholar).
127 See for example the Irish Ombudsman’s Guide to Standards of Best Practice for Public Servants included in his 1996 annual report and available on his website: http://www.irlgov.ie/ombudsman/2352_156.htm
128 The model Code is on the Ombudsman’s website at http://www.euro-ombudsman.eu.int/recommen/pdf/en/code1_en.pdf.
129 For the latter category, see especially Council of Europe, The Administration and You: a handbook, (Council of Europe) 1996 Google ScholarPubMed. Amongst academic work in this area, see for example Usher above n 125 above; Schwarze, J. European Administrative Law (London, Sweet and Maxwell and Office for Official Publications of the European Communities, 192)Google Scholar; Nehl, H. P., Principles of Administrative Procedure in EC Law (Oxford, Hart Publishing, 1999)Google Scholar.
130 The Commission’s code is annexed to its rules of procedure: OJ 2000 L 308/26 at 308/32. It is also available on the web at http://www.europa.eu.int/comm/secretariat_general/code/index_en.htm.
131 OI/1/98, Special Report of 11 April 2000.
132 The inclusion of an article on the right to good administration was first suggested by the Ombudsman in a speech made to the Convention drafting the Charter on 2 February 2000 (available on the Ombudsman’s website).