by Alessandra Rambaldi
14/05/16
1.The European Ombudsman. Profile and functions.
2.The independence of the European Ombudsman
3.Maladministration: a non-well defined framework
4.Who made the complaint?
5.Investigations and results
6.How affects the Ombudsman on European institutions
1. The European Ombudsman. Profile and functions.
The European Ombudsman has been introduced into EU institutional structure, with the Treaty on European Union signed on 7 February 1992 in Maastricht. This figure represents one of the most noticeable evidence that the European administration is a reality and it has to work in well-indicated limits of action. The European Ombudsman is committed to ensuring that citizens, NGOs, associations and companies are aware of their right to complain about maladministration in the EU institutions. As maladministration phenomenon we intend behaviors like discrimination, abuse of power, lack of information, the refusal of information, unnecessary delay and, more generally, administrative irregularities.
Its mission is to strengthen the protection of citizens’ rights and interests in the Union legal system through the creation of a non-litigious mechanism for delivery of administrative justice and the provision of an efficient alternative to litigation. It is a way to reduce the huge amount of work of the courts, and also to create a deeper bond between the citizen and the Union (a bond which is not yet completely felt).
Currently, the Ombudsman finds its legal basis in articles 20, 24 and 228 of the TFEU: these articles made the European Ombudsman an integral part of the Union citizenship. In addition, TFEU defined its role and its powers. Article 43 of the Charter of Fundamental Rights of the European Union elevates the Ombudsman option to the status of EU fundamental right. Since the entry into force of the Lisbon Treaty in 2009, the Charter of Fundamental Rights has the same legal value as the Treaties, which it means that now everyone is legally the owner of the right to be served by a good administration in European Union.
The action of the Ombudsman can be distinguished in three types of functions: the first function is to carry out an external control and investigation actions for maladministration (control). The second feature is the ability to correct the inequitable conduct (redress) and finally, the third function is the promotion of good administrative behavior, therefore a preventive mechanism to maladministration.
In reference to the redress function, the Ombudsman has several tools at its disposal. It can propose friendly solutions, draft recommendations, further remarks, critical remarks, and suggestions, however, without having a power comparable to a judicial authority.
Friendly solutions are especially preferred, because with them is possible to achieve a win-win result, that is capable to satisfy both the complainant and the institution, even if we are talking about tools with temporary effects. Indeed, they do not have the power to set a change into a problematic mechanism for the public interest.
When the institution unfairly rejects friendly solutions, the next possible step for the Ombudsman is to present draft recommendation, which have a different and more powerful publicity (draft recommendations are usually published on the Ombudsman Official website). This consequence makes possible and preferable, the achievement of a faster agreement between the institution and the complainant.
Anyway, 80% of cases of maladministration in 2013 has been closed with critical remarks. With this tool the Ombudsman indicates to the administration what is wrong in the specific case and, after all, even the same institution can ask to Ombudsman what kind of mistakes it did.
Otherwise, the further remarks have the aim to serve the public interest giving to the institutions useful addresses and advises to increase the quality of the work performances and, differently from the draft recommendations or from the critical remarks, these don’t presuppose a case of maladministration. So, they shouldn’t be understood as a warning against the institution.
2. The independence of the European Ombudsman
The role of the Ombudsman related in this way to the community justifies the choice to connect it closely to the European Parliament, a body directly elected by European citizens, who elected him for a renewable term of five years and annually receives a full report on its activities.
After all, “the Ombudsman shall be completely independent in the performance of his duties. “ (art. 228 TFEU) and the article 9 of the Statute of European Ombudsman claims: “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”. Indeed, it is clear that the investigation actions and the control of the claims of the citizens has to be done by someone who is supposed to be impartial and independent from other powers and the legal system is the only one which is able to ensure that.
The independence factor is emphasize by the Union, but it is not so related to the origin of the ‘ombudsman’ figure: in the Swedish legal system, where this institution has been created, the ombudsman had an instrumental role connected to the Swedish Parliament and its general directives.
The justitieombudsman has been introduced to make possible other type of control of the Parliament over the government, analyzing the conformity of the public administration work to the law.
Article 6 of the Statute says: “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”. Therefore, there are two requirements: the guarantee of independence and the competence.
As a further security, the Ombudsman shall cease to exercise his duties either at the end of his term of office or on his resignation or dismissal.
3. Maladministration: a non-well defined framework
What is the maladministration? Is it due to a rigid list of unfair conducts or is it an indefinite concept?
It can be held that every specific case might be related to a maladministration hypothesis, and everyone could be interested to complain a situation to the European Ombudsman, although the institution involved has made its business assuming all the formal legitimacy.
It may be relevant not only in the case where, for example, there is a formal violation of the procedures provided, but also in the case where the administration has performed its tasks without the necessary consideration for the ‘claims’ to good administration asked by european citizens, with the result to avoid the full enjoyment of rights.
The European Parliament required to Ombudsman to implement in its mission the Code of Good Administrative Behaviors, a text drafted by the Ombudsman himself, which formally lacks any binding legal force but for the purposes of his investigations, is deemed to govern the delivery of Union administrative services. In this uncertain scenario the code stands out as a useful tool to improve the performances and to promotion in the institutions and beyond, an european administrative culture harmonized and focused on citizens. The Code is guidance to increase the efficiency, transparency and accountability of the administration. While not possessing legal binding force by itself, its content helps to demarcate the boundaries of the action of the Ombudsman. In the document, we see the way of how the public service has to be done: commitment to the EU and its citizens, integrity, objectivity, respect for others, transparency, etc.
Among the principles enumerated in that code, article 12 is expected to ‘courtesy’, and this is an evidence of the spirit of service and availability to the other party. In addition, in the third paragraph of the same article, if the administration committed an error occurs which negatively affects the rights or interests of a citizen or of an association, the official shall apologize for it and endeavor to correct in appropriate ways the negative effects resulting from his mistake. Also, the official shall inform the person of any rights of appeal to challenge the decision.
So, drawing a logical scheme of different types of maladministration, we could distinguish the unlawful administrative activities, or contrary to the Treaties and other legal parameters that govern it (eg. in violation of the administrative law principle) and the administrative improper activities (or ‘bad’), which is not corresponding to the non-legal rules of good administration applicable to the specific circumstances (eg. an activity that does not respect the criteria of transparency and fairness, described in the Code).
To protect the citizens from the national maladministration in the application of european law, in 1996 has been founded the European Network of Ombudsmen. The Network has gradually developed into a powerful collaboration tool for ombudsmen and their staff, serving as an effective mechanism for co-operation on case handling. It is of particular importance to the European Ombudsman to enable her to deal promptly and effectively with complaints that fall outside her mandate (so, this network is like an extended arm of the European Ombudsman, when a complaint is out of its competence).
4. Who made the complaint?
According to article 228 par. 1 TFEU, complaints may be submitted by persons (citizens and residents of EU countries), as well as by legal persons (associations or companies established in one Member State, and institutions), against the conduct of institutions. The statistical data presented in the Annual Report 2014, show that the majority of complaints closed during the year came mostly from individuals (87%) and only the remaining 13% by legal entities.
It should be noted that the right of complaint doesn’t appears relegated to the confines of mere European citizenship, being provided the opportunity for the resident in a State of the Union to file a complaint against the maladministration perpetrated by the European institutions. It is like, talking about the right to complaint, the concept of European citizenship passed into the background and gave way to a more nuanced and extended concept of ‘administrative citizenship’, able to encompass a much larger number of individuals, to ensure need for legal certainty and to enhance the transparency and accountability of decision-making and management process of the EU institutions.
The Ombudsman shall investigate on inquiries that seem relevant for a public interest, except where the alleged facts are or have been the object of a legal proceeding. Where the Ombudsman founds a suspect of maladministration, he shall refer the institution concerned, which has three months to inform him of its opinion. Then, the Ombudsman shall forward a report to the European Parliament and the institution, or agency concerned. During its activity, the complainant will be kept informed of the developments of the inquiries.
Article 2 of the Statute regulates the right of complaint in detail. In it is required that the object of the appeal is clearly exposed and that the person complainant must be identified.
5. Investigations and results
When there is the possibility to find a conduct of maladministration, the Ombudsman begins its investigation. The ‘suspected’ administration must be informed by the Ombudsman about the beginning of a control procedure and, along with it, all the institutions concerned.
The ombudsman has wide powers of investigation, and can require the administration to obtain information and access to its files. The Law provides to the entire administrative system the duty to cooperate and provide information where these are required. It is possible to avoid this prevision only if the documents required for consultation may be classified as sensitive (within the meaning of Article 9 of Regulation (EC) No. 1049/2001, these are subject to special safety regulations). In case that institution provides such documents to the Ombudsman must inform him about the special ‘quality’ of the files.
It is not uncommon, that to the standard procedure it may be preferred an informal and friendly approach as, for example, the resolution of the problem through the promotion of a communication between the individual complainant and the administration reported.
It is requested that the Ombudsman and his staff do not disclose the information and documents brought to their knowledge during the business (duty even stronger for sensitive documents and for the personal data and information that can caused injury to a subject).
If, as part of an investigation, the mediator becomes aware of facts that have, in his opinion, criminal incidence, shall immediately notify the competent national authorities.
Article. 3, paragraph VI of the Statute provides that “the mediator, finds there has been maladministration, he shall inform the institution or body concerned, proposing, if necessary, draft recommendations. The institution or body so informed shall send the Ombudsman a detailed opinion within three months”.
In reference to the last official report of the Ombudsman in 2014, only 15% of the complaints received during the year resulted useful to open an investigation, while in 56.3% of cases the activities of the Ombudsman was concerned in a simple advice. Moreover, among the only 9% of investigations undertaken it revealed maladministration situations (39 cases).
When the Ombudsman finds cases of maladministration may make draft recommendations to the institution involved, as well as to Parliament. The recommendations of the Ombudsman does not have the legal effect of a judgment, but just for the authority that the European legal system recognizes to this figure, its decisions are respected in most cases. In addition, more and more often ombudsman makes comments (remarks and suggestions) that help the authorities concerned to realize the improvements required (49 in 2012, 83 in 2013).
Where a Community institution fails to respond adequately to a draft recommendation, the Ombudsman may send a special report to the European Parliament, together with other recommendations. This is an eventuality which, however, rarely occurs and the last case in which this occurred was in 2013 with the case of Frontex.
6. How affects the Ombudsman on European Institutions
In 2013 the European institutions have accepted 9 friendly solutions and 9 draft recommendations: the majority of them was directed to the European Commission. Maybe because of the role and the ‘size’ of the Commission in the administration system, the most part of citizens focus their own complaints against this institution and in 2014, the Ombudsman has conducted 204 inspections on Commission activities. In this ranking, at the second place there are the European agencies involved in 47 investigations.
In 2013, however, the critical remarks were 50 and 83 further remarks: to these acts the institutions tthave responded in a maximum period of six months, with isolated cases of delay. After the 81% of these acts, institutions has followed the address indicated by the Ombudsman.
Beyond the detailed information on individual types of acts, summing up it can be said that the proposals of the Ombudsman institutions tend to conform 80% of cases. This is the evidence that the law recognizes authority to this figure. Just about the Commission the rate of compliance has dropped significantly, going from 84% in 2012 to 73% in 2013.
