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European Ombudsman 1

The European Ombudsman and the right to good administration as a fundamental right: conceptual issues

Dr Antonios Antoniadis Legal Officer European Ombudsman

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Outline

Introduction

 The development of the Ombudsman’s office

The Ombudsman’s mandate

 Who?  Against whom?  About what?  Maladministration and the right to good

administration An insider’s view

 Procedure  Practice

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Introduction

Establishment and historical development of the Ombudsman

 Institutional prehistory and the coming of age

 1995 – 2003: Söderman  2003 – 2013: Diamandouros  2013 -

: O’Reilly

The Ombudsman’s Office

 Location (Strasbourg-Brussels)  Staff (75 of which 20 legal officers)  Website: www.ombudsman.europa.eu  Languages

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The Ombudsman’s mandate

Article 228 TFEU A European Ombudsman…shall…receive complaints from any citizen

• f the Union or any natural or legal person residing or having its

registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies,

• ffices or agencies…

The Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him directly … Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution …

• concerned. …

The EO Statute The Implementing Provisions

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Conceptual issues I: What is maladministration?

Definition: (AR1998) “Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it”

Content:

 Maladministration v. unlawfulness (“There is life

beyond legality”)

 Principles of good administration and human rights

Maladministration Illegality

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Conceptual issues I: What is maladministration? The European Code of Good Administrative Behaviour

 The ECGAB was proposed by the Ombudsman and approved by

the Parliament in 2001 as a follow-up to the Charter

 The Ombudsman makes use of the Code in the context of her

inquiries.

 The Code includes principles such as lawfulness, absence of

discrimination, proportionality, absence of abuse of power, impartiality and independence, objectivity, fairness and courtesy.

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Conceptual issues II: What is good administration?

Article 41 CFREU – Right to good administration

• 1. Every person has the right to have his or her affairs handled

impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

• 2. This right includes:

the right to be heard; the right to have access to his or her file; the obligation of the administration to give reasons for its decisions.

• 3. The right to have the Community make good any damage caused

by its institutions or by its servants.

• 4. Every person may write to the institutions of the Union in one of the

languages of the Treaties and must have an answer in the same language.

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Conceptual issues II: What is good administration?

• A. Scope of the principles of good administration

Examples:



Article 10 ECGAB (“legitimate and reasonable

expectations”)



Article 11 ECGAB (“The official shall act

impartially, fairly and reasonably”)

• B. The Charter as primary Union law

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Conceptual issues and practice

Infringement cases (Article 258 TFEU)

 Communications 2002 and 2012

Transparency: Access to documents

 Regulation 1049/2001

Staff cases – Recruitment (EPSO) Awards of tenders or contracts Institutional and policy matters

 Provisions on democratic principles (Articles 9-11 of the TEU,

specifically, the ECI)

 Ethics (Conflicts of Interest, Revolving Doors)  Improving the culture of service (Public Service Principles for EU

• fficials)

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Conceptual issues and practice: A comparison with the Court of Justice Ombudsman

 Actio popularis  Proactive role  Scope of inquiry: broad  Remedies: no binding

interpretation, no binding remedies

Court of Justice

 Locus standi  Reactive role  Scope of review: narrow  Remedies: binding

interpretation, annulment

• f acts

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Procedure

The Registry → Outside the Mandate → Advice/Transfer

(Europe Direct, SOLVIT, European Commission, National/Regional Ombudsmen, Consumer bodies)

Complaints and Inquiries Units

 Admissibility → Grounds  Inquiry (Inspection of documents/Hearing of witnesses)  Simplified procedures  No maladministration  Friendly solution proposal  Draft recommendations  Critical remark/Further Remark  Special report

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Statistics

Year Number of complaints Opened inquiries Closed inquiries 2011 2510 396 318 2012 2442 465 390

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Statistics Complaints against

European Commission 245 European Personnel Selection Office 78 European Parliament 24 European External Action Service 14 European Investment Bank 7 Other (EU agencies) 97(58)

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Statistics Results 2012

Settled by the institution or friendly solution accepted 80 No further inquiries justified 197 No maladministration 76 Maladministration found 56 Other 15

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Conclusions

The Challenge Ahead

The European Ombudsman, the right to good administration and the European Union in crisis