22 July 1997
By the Select Committee appointed
to consider Community proposals, whether in draft or otherwise,
to obtain all necessary information about them, and to make reports
on those which, in the opinion of the Committee, raise important
questions of policy or principle, and on other questions to which
the Committee considers that the special attention of the House
should be drawn.
ORDERED TO REPORT
THE EUROPEAN OMBUDSMAN
1. On 8 July 1997, the
Committee was pleased to receive a visit from Mr Jacob Söderman[1],
the European Ombudsman. In evidence to the Committee, he described
his role and work and answered questions from members of the Committee
on a variety of issues affecting his office. The European Ombudsman
fulfils an important role in the control of maladministration
on the part of Community institutions and bodies and the purpose
of this brief Report is to bring this to the attention of the
House. The evidence given by Mr Söderman is printed with
this Report.
Treaty base-appointment
2. Article 8d of the
EC Treaty (inserted by the Maastricht Treaty) gives citizens of
the Union (that is every person holding the nationality of a Member
State) two rights; to petition the European Parliament, and to
complain to the Ombudsman. Article 138d provides that the Ombudsman
can receive complaints from any citizen or any natural or legal
person residing or having its registered office in a Member State
about maladministration in the activities of any Community institution[2]
or body[3],
with the exception of the Court of Justice and the Court of First
Instance acting in their judicial capacity. Detailed rules (the
"Statute of the Ombudsman") concerning the performance
of the Ombudsman's duties were adopted by the Parliament on 9
March 1994[4].
3. The Treaty requires
the Ombudsman to be "completely independent in the performance
of his duties".The Ombudsman is appointed by the European
Parliament, to whom he is required to make an annual report of
his work. Mr Söderman, a former Finnish Ombudsman, was appointed
by the Parliament as the first European Ombudsman on 12 July 1995.
He took up his duties formally on 27 September that year. His
office is situated in Strasbourg. He has a total staff of fifteen,
including four legal officers.
Investigation of
maladministration
4. The Ombudsman conducts
enquiries, either in response to a complaint or on his own initiative,
into alleged maladministration by a Community institution or body.
On finding maladministration he can make draft recommendations
to the institution or body concerned. He has no powers to order
an institution or body to change a decision or grant redress,
by annulling decisions or by awarding damages. Community institutions
and bodies are under a duty to assist the Ombudsman in his enquiries.
He also has the power to request information from Member States
who are under a duty to supply such information unless legal rules
on secrecy or other provisions prevent its communication. He cannot
deal with complaints against national authorities.
5. The Treaty contains
no definition of what constitutes maladministration. The introduction
to the standard form for making a complaint, How to complain
to the European Ombudsman[5],
says that maladministration means "poor or failed administration"
and gives the following as examples; administrative irregularities
or omissions, abuse of power, negligence, unlawful procedures,
unfairness, malfunction or incompetence, discrimination, avoidable
delay or lack or refusal of information. Mr Söderman said
that he construed "maladministration" broadly to include
a failure by the institution concerned to follow the general principles
of good administration and the jurisprudence of the Court of Justice.
Complaining to
the Ombudsman
6. A complaint may be
made by simple letter, or by using the form provided, in any of
the official languages of the Community. It should set out the
grounds and enclose copies of relevant documentation. The complaint
has to made within two years "of the date on which the facts
became known". The complaint must have been preceded by appropriate
approaches to the institution or body concerned. It may not concern
matters which have been ruled on by, or are pending before, a
court. If requested, the complaint will be treated confidentially.
The Ombudsman takes the view that it is important that he should
act in as open and transparent a way as possible, both so that
the public can follow and understand his work and to set a good
example to others.
7. In 1996, some 842
complaints were received by the Ombudsman. Most of these came
from private citizens. About 65 per cent[6]
were rejected as being inadmissible. Inquiries were begun in 210
cases, including 3 own initiatives by the Ombudsman. Most complaints
related to the work of the Commission, the Community institution
with whom the citizen is most likely in practice to come into
contact. Even here the number of cases is relatively few, considering
the overall size of the Community. Many complaints were about
undue delay or lack of information. There was also, Mr Söderman
explained, a number of cases concerning recruitment procedures,
especially about age limits. In 1996, inquiries were completed
in 102 cases, of which 82 resulted in findings that there had
been no maladministration. There were 34 findings of maladministration.
Procedure for investigating
complaints
8. In outline, the Ombudsman's
procedure for the handling of complaints is as follows. On receipt,
the complaint is examined to see whether it is admissible (in
practice, as the above statistics show, a substantial majority
are rejected, mainly because the complaint is outside the Ombudsman's
terms of reference because it relates to the activities of a national
authority). Complaints which are considered admissible and where
there seem to be sufficient grounds to conduct an enquiry are
communicated to the Community institution or body concerned which
is asked to give a "first opinion" on the matter within
three months. The complainant is sent a copy of the "first
opinion" and invited to make comments within one month. The
Ombudsman, having considered the "first opinion" and
any comments of the complainant, may decide that no further enquiry
is justified or that the institution or body has acted satisfactorily
to resolve the matter. A case may be closed with "a critical
remark" to the institution or body concerned (there were
32 such cases in 1996), where the instance of maladministration
appears to have no general implications and no follow-up action
seems necessary The parties informed are informed that the file
has been closed. If the Ombudsman considers that there is a prima
facie case of maladministration he will seek a solution between
the parties. If further enquiries lead the Ombudsman to conclude
that there has been maladministration he will make draft recommendations
to the institution or body which must respond in a detailed opinion
within three months. Only 2 cases in 1996 went to this stage.
If the matter is still not resolved, the Ombudsman sends a report,
which may include recommendations, to the European Parliament
and informs the institution or body accordingly.
Own initiative
enquiries
9. The Ombudsman has
power to commence enquiries on his own initiative. Such enquiries,
Mr Söderman said, may have a greater impact on the administration
than individual complaints. He explained that where he has seen
from a number of complaints that there was a general problem he
has taken the opportunity to initiate an enquiry on his own initiative.
He has done this on at least three occasions, including public
access to documents and the Commission's procedure (under Article
169 of the EC Treaty) for dealing with complaints alleging infringement
of Community law by Member States. His primary role remains, however,
the investigation of individual complaints of maladministration
brought by Community citizens.
Cooperation with
the European Parliament and others
10. The European Ombudsman
co-operates with the Parliament, the Commission and national ombudsmen.
As already mentioned, the Maastricht Treaty gave the citizen two
rights, to petition the Parliament and to complain to the Ombudsman,
and it may not always be clear to whom the citizen might bring
his grievance. The Committee on Petitions of the Parliament and
the Ombudsman have therefore established ground rules for handling
cases and a procedure for the transfer, with the agreement of
the petitioner or complainant, of cases between them. In 1996,
10 cases were transferred from the Parliament to be dealt with
as complaints by the Ombudsman. Five cases were, with the consent
of the complainant, transferred in the opposite direction. Where
the Ombudsman finds a case inadmissible the complainant may be
advised, where appropriate, to petition the Parliament. As mentioned
above the Ombudsman is required to report annually to the Parliament
To date, he has presented two reports, for 1995 and 1996.
11. As mentioned above,
experience shows that many complaints received by the European
Ombudsman concern alleged wrongdoing by national authorities.
Such complaints are outside his terms of reference and thus inadmissible.
They may nonetheless relate to the implementation or application
of Community law by national administrations. Failures to implement
Community law and other activity by Member States in breach of
Community law may be referred to the Commission who has the role
of guardian of the Treaty and can take up cases of infringement
of the Treaty with the Member State concerned under the Article
169 procedure. In other instances it may be appropriate for the
matter to be investigated by a national ombudsman. The European
Ombudsman has examined with national and regional ombudsmen practical
arrangements for the reciprocal exchange of information and for
other forms of co-operation. A network of liaison officers has
been established.
Experience to date
12. The Ombudsman has
received over 1600 complaints. The large majority of these were,
as already mentioned, judged to be inadmissible, largely on the
grounds that they related to the activities of national authorities.
For example, a number of complaints have concerned the failure
of national bodies to recognise professional qualifications and
diplomas granted in another Member State. This may comprise a
breach of Community law, but does not involve any administrative
act on the part of the Commission or any other Community body.
The Ombudsman expressed concern at the large proportion of inadmissible
cases - many more than would be experienced by a national ombudsman.
He is taking action, by publicising the scope of his mandate and
by encouraging national authorities to be more aware of Community
law, to try to reduce the number of inadmissible cases. The Committee
believes that this should be a priority.
13. More generally on
the question of the number of complaints, the Committee is somewhat
surprised at the numbers of complaints made so far and forecasted.
We recognise that the Ombudsman has not long been in existence
and that the number of those coming into direct contact with Community
institutions (mainly in practice with the Commission) is relatively
small compared to the total population of the Union. Nevertheless
the smallness of the numbers may show a lack of awareness and
knowledge of the Ombudsman on the part of the citizen. We believe
that greater effort should be made, not just by Mr Söderman
and his staff but also by all Community institutions and bodies
(especially when dealing with complaints), to drawing attention
to the role and powers of the Ombudsman.
14. Most complaints
come from private individuals. Surprisingly few companies complain
to the Ombudsman, though they frequently criticise the Commission
for late payment of debts and other delays in communication. The
Ombudsman may be able to help firms in such matters and Mr Söderman
pointed to some success in the few cases which had come his way.
This is, in the opinion of the Committee, something to which bodies
such as the Confederation of British Industry and the Federation
of Small Businesses might usefully alert their members.
15. As regards the subject-matter
of complaints, the Committee notes that a substantial number relate
to lack of transparency and failure to provide information. Of
the Ombudsman's own initiative enquiries, that relating to the
accessibility of documents and other information was of special
interest to the Committee. The Ombudsman has recommended that
some 14 Community institutions and bodies adopt rules about public
access to documents[7].
The Committee has frequently criticised the Commission and the
Council for lack of transparency, for example in relation to membership
of scientific and other "expert" committees and the
factual scientific or other evidence on which the Commission has
based regulatory action. The Committee therefore welcomes the
Ombudsman's intervention in these matters. We also support his
interpreting "maladministration" broadly to include
failure to provide information, including the reasons and explanations
for particular acts or omissions on the part of the Commission
and the Council.
16. The number of complaints
made to the Ombudsman is likely to increase as more individuals
and firms in the Community learn of his existence and of the assistance
which his intervention can bring. The Ombudsman's Office is small.
Mr Söderman eschewed the notion of it becoming a big European
bureaucracy. For the present, at least, he had no complaint about
the lack of resources. The Committee supports the Ombudsman's
aim of having a lean, qualified, efficient team.
RECOMMENDATION
17. The Committee draws
attention to the important role played by the European Ombudsman
in the control of the behaviour and activities of Community institutions
and bodies and looks forward to the continuing development of
that role. The Committee makes this Report to the House for information.
1
Mr Söderman was accompanied by Mrs Broms, a legal officer
in the Office of the Ombudsman. Back
2
The Parliament, the Council, the Commission, the Court of Justice
and the Court of Auditors. Back
3
This includes the Economic and Social Committee (ECOSOC), the
Committee of the Regions, the European Monetary Institute, the
European Investment Bank and the European Environment Agency. Back
4
European Parliament Decision 94/262 of 9 March 1994 on the regulations
and general conditions governing the performance of the Ombudsman's
duties. O.J. L113/5 of 4 April 1994. Back
5
This is reproduced in Appendix 2. Use of the form is not compulsory. Back
6
The equivalent figure for the Parliamentary Commissioner for Administration
would be about 40 per cent. Parliamentary Commissioner for Administration.
Annual Report for 1997. Back
7
New Article 191a of the EC Treaty, as proposed by the Draft Treaty
of Amsterdam, provides a right of access to European Parliament,
Council and Commission documents. General principles and limits
having first been fixed, each institution is to lay down rules
of procedure regarding access to its documents. Back
