P. Nikiforos Diamandouros, the European Ombudsman, has published his Annual Report for 2008 (27 April 2009).
The full 100 page report is available in English, but summaries are on offer in the other official languages of the European Union.
This is how the report explains its own structure:
The structure of the new Report is designed to guide the reader logically from an explanation of the Ombudsman's mandate and procedures (Chapter 2), to concrete case-handling activity in 2008 (Chapter 3), outreach activities (Chapter 4) and internal developments concerning personnel and budget (Chapter 5). The Report begins, as before, with an introduction by the Ombudsman, followed by an Executive Summary (Chapter 1).
***
European Ombudsman: Legal background
The core provision on the European Ombudsman is Article 195 of the Treaty establishing the European Community (TEC):
Article 195 TEC
1. The European Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of 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 Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.
In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.
The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.
2. The Ombudsman shall be appointed after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.
The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.
3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any body. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.
4. The European Parliament shall, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.
***
Planning a complaint?
If you are planning a complaint to the European Ombudsman, you (or your advisor) would do well to read the Annual Report. It contains a lot of information about admissibility and the handling of inquiries.
Ralf Grahn
Showing posts with label maladministration. Show all posts
Showing posts with label maladministration. Show all posts
Tuesday, 28 April 2009
Thursday, 19 February 2009
European Parliament: Ombudsman (II)
In this part we take a closer look at the Ombudsman below the treaty level.
Besides referring to the 2007 Annual Report of the European Ombudsman as an opportunity to learn more about the Ombudsman’s work, we use it as an example of the relatively few stages when the European Parliament deals with an own-initiative report.
We refer the regulations concerning the European Ombudsman’s work, the EP’s Rules of Procedure and the European Code of Good Administrative Behaviour as well as the current Ombudsman’s thoughts on transparency.
***
Web pages
If you are an EU citizen or resident or a legal person interested in lodging a complaint, or if your interest is academic, you can find the information you want on the web pages The European Ombudsman:
http://www.ombudsman.europa.eu/home.faces
***
Annual Report and EP procedure
The latest Annual Report of the European Ombudsman is for the year 2007 (published 10 March 2008):
http://www.ombudsman.europa.eu/activities/annualreports.faces
In the European Parliament the committee responsible for petitions and relations with the European Ombudsman is the Committee on Petitions (PETI), mentioned in Article 194 TEC.
On 18 September 2008 the Committee on Petitions approved the own-initiative report by Dushana Zdravkova on the annual report on the European Ombudsman's activities in 2007, A6-0358/2008; procedure 2008/2158(INI).
The European Parliament approved the annual report by a non-legislative resolution on 23 October 2008, P6_TA(2008)0524, but found the tables of statistics confusing. (The vote was 465 to 1, with 7 abstentions.)
The EP noted, despite a rising proportion of admissible complaints, that only 16 per cent of the the complaints submitted were admissible. The EP therefore recommended an enhanced information campaign be conducted amongst European citizens designed to raise their awareness of the functions and competence of the European Ombudsman (or rather the limits).
***
Charter of Fundamental Rights
The European Ombudsman is mentioned in the current Article 195 TEC and the future(?) Article 228 TFEU.
In addition, two provisions of the Charter of Fundamental Rights of the European Union, which has been declared politically binding, but would become legally binding on the entry into force of the Lisbon Treaty, concern the Ombudsman.
Article 43 reiterates the right to refer cases of maladministration to the European Ombudsman concerning the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role.
The other Charter provision, worth presenting here in full because at the centre of the European Ombudsman’s activities, is Article 41 on the right to good administration (OJEU 14.12.2007 C 303/10─11):
Article 41
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, bodies, offices and agencies of the Union.
2. This right includes:
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
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.
***
Ombudsman’s duties
The detailed rules referred to in Article 195(4) TEC (Article 228(4) TFEU) have been laid down by the EP in Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties, originally published OJ 4.5.1994 L 113/35. The Decision has been amended, so this link leads to the consolidated version (of 31 July 2008):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1994D0262:20080731:EN:PDF
The provisions are relevant not only for the European Ombudsman when conducting his inquiries, but also for EU citizens and residents considering referring a complaint to him.
***
EP Rules of Procedure
Articles 194 to 196 of the European Parliament’s Rules of Procedure (16th edition, October 2008) have further provisions on the appointment, activities and dismissal of the Ombudsman:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN
TITLE IX OMBUDSMAN
Rule 194 Appointment of the Ombudsman
1. At the start of each parliamentary term, immediately after his election or in the cases referred to in paragraph 8, the President shall call for nominations for the office of Ombudsman and set a time limit for their submission. A notice calling for nominations shall be published in the Official Journal of the European Union.
2. Nominations must have the support of at least forty Members who are nationals of at least two Member States.
Each Member may support only one nomination.
Nominations shall include all the supporting documents needed to show conclusively that the nominee fulfils the conditions required by the Regulations on the Ombudsman.
3. Nominations shall be forwarded to the committee responsible, which may ask to hear the nominees.
Such hearings shall be open to all Members.
4. A list of admissible nominations in alphabetical order shall then be submitted to the vote of Parliament.
5. The vote shall be held by secret ballot on the basis of a majority of the votes cast.
If no candidate is elected after the first two ballots, only the two candidates obtaining the largest number of votes in the second ballot may continue to stand.
In the event of any tie the eldest candidate shall prevail.
6. Before opening the vote, the President shall ensure that at least half of Parliament's component Members are present.
7. The person appointed shall immediately be called upon to take an oath before the Court of Justice.
8. The Ombudsman shall exercise his duties until his successor takes office, except in the case of his death or dismissal.
Rule 195 Activities of the Ombudsman
1. The decision on the regulations and general conditions governing the performance of the Ombudsman's duties and the provisions implementing that decision as adopted by the Ombudsman are annexed for information to the Rules of Procedure.
2. The Ombudsman shall, in accordance with Article 3(6) and (7) of the above decision, inform Parliament of cases of maladministration, on which the committee responsible may draw up a report. He shall also, in accordance with Article 3(8) of the above decision, submit a report to Parliament at the end of each annual session on the outcome of his inquiries. The committee responsible shall draw up a report thereon which shall be submitted to Parliament for debate.
3. The Ombudsman may also inform the committee responsible at its request, or be heard by it on his own initiative.
Rule 196 Dismissal of the Ombudsman
1. One-tenth of Parliament's component Members may request the Ombudsman's dismissal if he no longer fulfils the conditions required for the performance of his duties or is guilty of serious misconduct.
2. The request shall be forwarded to the Ombudsman and to the committee responsible, which, if it decides by a majority of its members that the reasons are well-founded, shall submit a report to Parliament. If he so requests, the Ombudsman shall be heard before the report is put to the vote. Parliament shall, following a debate, take a decision by secret ballot.
3. Before opening the vote, the President shall ensure that half of Parliament's component Members are present.
4. If the vote is in favour of the Ombudsman's dismissal and he does not resign accordingly the President shall, at the latest by the part-session following that at which the vote was held, apply to the Court of Justice to have the Ombudsman dismissed with a request for a ruling to be given without delay.
Resignation by the Ombudsman shall terminate the procedure.
***
The Decision 94/262 can also be found as Annex X to the EP Rules of Procedure.
***
Code of Good Administration
The Ombudsman’s European Code of Good Administrative Behaviour was adopted in 2001 by the European Parliament, and it has been updated to take into account the Charter of Fundamental Rights.
The current edition dates from 2005, and its intention is to explain in detail what the Charter’s right to good administration should mean in practice. The Code is available here:
http://www.ombudsman.europa.eu/code/en/default.htm
***
Diamandouros interview
On 18 February 2009 EurActiv published an interview with the European Ombudsman P. Nikiforos Diamandouros, who took over the job in 2003 after Jacob Söderman.
Under the heading’Swedes to prioritise transparency at EU helm’ Diamandouros shared his thoughts on the incoming Swedish EU Council presidency and on this week’s European Parliament committee report on transparency.
The European Ombudsman did his best to inform the public about the limits of his mandate, namely EU institutions and bodies: “The Ombudsman conceded that the "vast majority" of the 3,500-4000 complaints he receives each year from citizens are inadmissible, because they should be dealt with at national level.”
The interview is available here:
http://www.euractiv.com/en/pa/swedes-prioritise-transparency-eu-helm/article-179559
Ralf Grahn
Besides referring to the 2007 Annual Report of the European Ombudsman as an opportunity to learn more about the Ombudsman’s work, we use it as an example of the relatively few stages when the European Parliament deals with an own-initiative report.
We refer the regulations concerning the European Ombudsman’s work, the EP’s Rules of Procedure and the European Code of Good Administrative Behaviour as well as the current Ombudsman’s thoughts on transparency.
***
Web pages
If you are an EU citizen or resident or a legal person interested in lodging a complaint, or if your interest is academic, you can find the information you want on the web pages The European Ombudsman:
http://www.ombudsman.europa.eu/home.faces
***
Annual Report and EP procedure
The latest Annual Report of the European Ombudsman is for the year 2007 (published 10 March 2008):
http://www.ombudsman.europa.eu/activities/annualreports.faces
In the European Parliament the committee responsible for petitions and relations with the European Ombudsman is the Committee on Petitions (PETI), mentioned in Article 194 TEC.
On 18 September 2008 the Committee on Petitions approved the own-initiative report by Dushana Zdravkova on the annual report on the European Ombudsman's activities in 2007, A6-0358/2008; procedure 2008/2158(INI).
The European Parliament approved the annual report by a non-legislative resolution on 23 October 2008, P6_TA(2008)0524, but found the tables of statistics confusing. (The vote was 465 to 1, with 7 abstentions.)
The EP noted, despite a rising proportion of admissible complaints, that only 16 per cent of the the complaints submitted were admissible. The EP therefore recommended an enhanced information campaign be conducted amongst European citizens designed to raise their awareness of the functions and competence of the European Ombudsman (or rather the limits).
***
Charter of Fundamental Rights
The European Ombudsman is mentioned in the current Article 195 TEC and the future(?) Article 228 TFEU.
In addition, two provisions of the Charter of Fundamental Rights of the European Union, which has been declared politically binding, but would become legally binding on the entry into force of the Lisbon Treaty, concern the Ombudsman.
Article 43 reiterates the right to refer cases of maladministration to the European Ombudsman concerning the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role.
The other Charter provision, worth presenting here in full because at the centre of the European Ombudsman’s activities, is Article 41 on the right to good administration (OJEU 14.12.2007 C 303/10─11):
Article 41
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, bodies, offices and agencies of the Union.
2. This right includes:
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
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.
***
Ombudsman’s duties
The detailed rules referred to in Article 195(4) TEC (Article 228(4) TFEU) have been laid down by the EP in Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties, originally published OJ 4.5.1994 L 113/35. The Decision has been amended, so this link leads to the consolidated version (of 31 July 2008):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1994D0262:20080731:EN:PDF
The provisions are relevant not only for the European Ombudsman when conducting his inquiries, but also for EU citizens and residents considering referring a complaint to him.
***
EP Rules of Procedure
Articles 194 to 196 of the European Parliament’s Rules of Procedure (16th edition, October 2008) have further provisions on the appointment, activities and dismissal of the Ombudsman:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN
TITLE IX OMBUDSMAN
Rule 194 Appointment of the Ombudsman
1. At the start of each parliamentary term, immediately after his election or in the cases referred to in paragraph 8, the President shall call for nominations for the office of Ombudsman and set a time limit for their submission. A notice calling for nominations shall be published in the Official Journal of the European Union.
2. Nominations must have the support of at least forty Members who are nationals of at least two Member States.
Each Member may support only one nomination.
Nominations shall include all the supporting documents needed to show conclusively that the nominee fulfils the conditions required by the Regulations on the Ombudsman.
3. Nominations shall be forwarded to the committee responsible, which may ask to hear the nominees.
Such hearings shall be open to all Members.
4. A list of admissible nominations in alphabetical order shall then be submitted to the vote of Parliament.
5. The vote shall be held by secret ballot on the basis of a majority of the votes cast.
If no candidate is elected after the first two ballots, only the two candidates obtaining the largest number of votes in the second ballot may continue to stand.
In the event of any tie the eldest candidate shall prevail.
6. Before opening the vote, the President shall ensure that at least half of Parliament's component Members are present.
7. The person appointed shall immediately be called upon to take an oath before the Court of Justice.
8. The Ombudsman shall exercise his duties until his successor takes office, except in the case of his death or dismissal.
Rule 195 Activities of the Ombudsman
1. The decision on the regulations and general conditions governing the performance of the Ombudsman's duties and the provisions implementing that decision as adopted by the Ombudsman are annexed for information to the Rules of Procedure.
2. The Ombudsman shall, in accordance with Article 3(6) and (7) of the above decision, inform Parliament of cases of maladministration, on which the committee responsible may draw up a report. He shall also, in accordance with Article 3(8) of the above decision, submit a report to Parliament at the end of each annual session on the outcome of his inquiries. The committee responsible shall draw up a report thereon which shall be submitted to Parliament for debate.
3. The Ombudsman may also inform the committee responsible at its request, or be heard by it on his own initiative.
Rule 196 Dismissal of the Ombudsman
1. One-tenth of Parliament's component Members may request the Ombudsman's dismissal if he no longer fulfils the conditions required for the performance of his duties or is guilty of serious misconduct.
2. The request shall be forwarded to the Ombudsman and to the committee responsible, which, if it decides by a majority of its members that the reasons are well-founded, shall submit a report to Parliament. If he so requests, the Ombudsman shall be heard before the report is put to the vote. Parliament shall, following a debate, take a decision by secret ballot.
3. Before opening the vote, the President shall ensure that half of Parliament's component Members are present.
4. If the vote is in favour of the Ombudsman's dismissal and he does not resign accordingly the President shall, at the latest by the part-session following that at which the vote was held, apply to the Court of Justice to have the Ombudsman dismissed with a request for a ruling to be given without delay.
Resignation by the Ombudsman shall terminate the procedure.
***
The Decision 94/262 can also be found as Annex X to the EP Rules of Procedure.
***
Code of Good Administration
The Ombudsman’s European Code of Good Administrative Behaviour was adopted in 2001 by the European Parliament, and it has been updated to take into account the Charter of Fundamental Rights.
The current edition dates from 2005, and its intention is to explain in detail what the Charter’s right to good administration should mean in practice. The Code is available here:
http://www.ombudsman.europa.eu/code/en/default.htm
***
Diamandouros interview
On 18 February 2009 EurActiv published an interview with the European Ombudsman P. Nikiforos Diamandouros, who took over the job in 2003 after Jacob Söderman.
Under the heading’Swedes to prioritise transparency at EU helm’ Diamandouros shared his thoughts on the incoming Swedish EU Council presidency and on this week’s European Parliament committee report on transparency.
The European Ombudsman did his best to inform the public about the limits of his mandate, namely EU institutions and bodies: “The Ombudsman conceded that the "vast majority" of the 3,500-4000 complaints he receives each year from citizens are inadmissible, because they should be dealt with at national level.”
The interview is available here:
http://www.euractiv.com/en/pa/swedes-prioritise-transparency-eu-helm/article-179559
Ralf Grahn
European Parliament: Ombudsman (I)
This blog post looks at the watchdog of EU citizens, the Ombudsman, who investigates on his own initiative and on the basis of complaints. The Ombudsman is appointed by the European Parliament, but he acts independently.
***
Current treaty
Article 195 of the Treaty establishing the European Community (TEC) provides for the appointment of an Ombudsman, who investigates instances of maladministration in the EC institutions and bodies, either on his own initiative or on the basis of complaints submitted to him by EU citizens, residents of legal persons.
In case of maladministration the Ombudsman reports to the European Parliament and the institution concerned. The activities of the Ombudsman are presented in an annual report.
The Ombudsman is appointed after the European elections by the European Parliament for its term of office.
The Ombudsman shall be completely independent in the performance of his duties (OJEU 29.12.2006 C 321 E/133─134):
Article 195 TEC
1. The European Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of 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 Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.
In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.
The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.
2. The Ombudsman shall be appointed after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.
The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.
3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any body. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.
4. The European Parliament shall, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.
***
Original Lisbon Treaty
Article 2, point 183 of the original Treaty of Lisbon amended Article 195 TEC (OJEU 17.12.2007 C 306/102):
183) Article 195 shall be amended as follows:
(a) in the first subparagraph of paragraph 1, the words at the beginning ‘The European Parliament shall appoint an Ombudsman, empowered to receive complaints’ shall be replaced by ‘A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints’; in the last part of the sentence, the words ‘and the Court of First Instance acting in their judicial role’ shall be replaced by: ‘acting in its judicial role’ and the following final sentence shall be added: ‘He or she shall examine such complaints and report on them.’;
(b) in the first subparagraph of paragraph 2, the word ‘appointed’ shall be replaced by ‘elected’;
(c) in paragraph 3, the words ‘from any body’ shall be replaced by ‘from any Government, institution, body, office or entity’;
(d) in paragraph 4, the words ‘acting by means of regulations on its own initiative in accordance with a special legislative procedure’ shall be inserted after ‘The European Parliament’.
***
Consolidated Lisbon Treaty
In the consolidated (readable) version of the Lisbon Treaty the renumbered provision becomes Article 228 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/130─131:
Article 228 TFEU
(ex Article 195 TEC)
1. A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints from any citizen of 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, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them.
In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution, body, office or agency concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution, body, office or agency concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.
The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.
2. The Ombudsman shall be elected after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.
The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.
3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any Government, institution, body, office or entity. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.
4. The European Parliament acting by means of regulations on its own initiative in accordance with a special legislative procedure shall, after seeking an opinion from the Commission and with the approval of the Council, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.
***
Comment
Currently the Ombudsman is appointed, but under the Lisbon Treaty he would be elected by the European Parliament. This and other amendments do not alter the substance of the provision.
***
The second part will look at detailed provisions relating to the Ombudsman.
Ralf Grahn
***
Current treaty
Article 195 of the Treaty establishing the European Community (TEC) provides for the appointment of an Ombudsman, who investigates instances of maladministration in the EC institutions and bodies, either on his own initiative or on the basis of complaints submitted to him by EU citizens, residents of legal persons.
In case of maladministration the Ombudsman reports to the European Parliament and the institution concerned. The activities of the Ombudsman are presented in an annual report.
The Ombudsman is appointed after the European elections by the European Parliament for its term of office.
The Ombudsman shall be completely independent in the performance of his duties (OJEU 29.12.2006 C 321 E/133─134):
Article 195 TEC
1. The European Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of 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 Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.
In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.
The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.
2. The Ombudsman shall be appointed after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.
The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.
3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any body. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.
4. The European Parliament shall, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.
***
Original Lisbon Treaty
Article 2, point 183 of the original Treaty of Lisbon amended Article 195 TEC (OJEU 17.12.2007 C 306/102):
183) Article 195 shall be amended as follows:
(a) in the first subparagraph of paragraph 1, the words at the beginning ‘The European Parliament shall appoint an Ombudsman, empowered to receive complaints’ shall be replaced by ‘A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints’; in the last part of the sentence, the words ‘and the Court of First Instance acting in their judicial role’ shall be replaced by: ‘acting in its judicial role’ and the following final sentence shall be added: ‘He or she shall examine such complaints and report on them.’;
(b) in the first subparagraph of paragraph 2, the word ‘appointed’ shall be replaced by ‘elected’;
(c) in paragraph 3, the words ‘from any body’ shall be replaced by ‘from any Government, institution, body, office or entity’;
(d) in paragraph 4, the words ‘acting by means of regulations on its own initiative in accordance with a special legislative procedure’ shall be inserted after ‘The European Parliament’.
***
Consolidated Lisbon Treaty
In the consolidated (readable) version of the Lisbon Treaty the renumbered provision becomes Article 228 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/130─131:
Article 228 TFEU
(ex Article 195 TEC)
1. A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints from any citizen of 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, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them.
In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution, body, office or agency concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution, body, office or agency concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.
The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.
2. The Ombudsman shall be elected after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.
The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.
3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any Government, institution, body, office or entity. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.
4. The European Parliament acting by means of regulations on its own initiative in accordance with a special legislative procedure shall, after seeking an opinion from the Commission and with the approval of the Council, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.
***
Comment
Currently the Ombudsman is appointed, but under the Lisbon Treaty he would be elected by the European Parliament. This and other amendments do not alter the substance of the provision.
***
The second part will look at detailed provisions relating to the Ombudsman.
Ralf Grahn
Tuesday, 17 February 2009
European Parliament: Committee of Inquiry
What can EU law teach us about the powers of the European Parliament to investigate alleged contraventions or maladministration of European Community (European Union) law?
We look at the current treaty provisions, the Treaty of Lisbon, detailed provisions, internal EP rules and a few examples of inquiries.
***
Current treaty
Article 193 of the Treaty establishing the European Community (TEC) foresees that an extraordinary Committee of Inquiry in relation to the implementation of Community law, to investigate:
· contraventions or
· maladministration.
The Committee of Inquiry is temporary. One quarter of the MEPs must request the setting up of the Committee, but the decision is taken by the plenary.
If the matter is being examined before a court, no Committee shall be set up during the proceedings, but otherwise the provision is without prejudice to other investigations and actions.
The text of Article 193 TEC is from the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/133:
Article 193 TEC
In the course of its duties, the European Parliament may, at the request of a quarter of its Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by this Treaty on other institutions or bodies, alleged contraventions or maladministration in the implementation of Community law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings.
The temporary Committee of Inquiry shall cease to exist on the submission of its report.
The detailed provisions governing the exercise of the right of inquiry shall be determined by common accord of the European Parliament, the Council and the Commission.
***
Original Lisbon Treaty
Article 2, point 182 of the original Treaty of Lisbon amended Article 193 TEC (OJEU 17.12.2007 C 306/102):
182) Article 193 shall be amended as follows:
(a) in the first paragraph, the words ‘of its Members’ shall be replaced by ‘of its component Members’;
(b) the third paragraph shall be replaced by the following:
‘The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure, after obtaining the consent of the Council and the Commission.’.
***
Consolidated Lisbon Treaty
In the consolidated (readable) Lisbon Treaty the provision appears renumbered as Article 226 of the Treaty on the Functioning of the European Union, TFEU (OJEU 9.5.2008 C 115/150):
Article 226 TFEU
(ex Article 193 TEC)
In the course of its duties, the European Parliament may, at the request of a quarter of its component Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by the Treaties on other institutions or bodies, alleged contraventions or maladministration in the implementation of Union law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings.
The temporary Committee of Inquiry shall cease to exist on the submission of its report.
The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure, after obtaining the consent of the Council and the Commission.
***
Comment
The addition of the word ‘component’ to the quarter of members needed for a request makes life easier for the reader, without changing the substance. In theory, this would mean 188 MEPs under the Lisbon Treaty, if it enters into force and if the actual number of members at some point tallies with the 751 intended by Article 14(2) TEU.
The decision to set up the Committee of Inquiry is still taken by majority vote.
The material scope of the provision encompasses the implementation of EU law. The greater part of the EU budget is spent in the member states, where most of the implementation of Union law takes place.
Rephrasing the third paragraph makes it into one of the few instances where a special legislative procedure emanates from the European Parliament (not the Council), but since the consent of the Council and the Commission is still needed, there is little change in practice.
***
Detailed provisions on Committees of Inquiry
Annex VIII of the European Parliament’s Rules of Procedure reproduces the text of Decision of the European Parliament, the Council and the Commission of 19 April 1995 on the detailed provisions governing the exercise of the European Parliament's right of inquiry (OJ 19.5.1995 L 113/2).
***
EP Rules of Procedure
Rule 176 of the European Parliament’s Rules of Procedure (16th edition, October 2008) provides detailed internal provisions on Committees of inquiry:
Rule 176 Committees of inquiry
1. Parliament may, at the request of one-quarter of its component Members, set up a committee of inquiry to investigate alleged contraventions of Community law or alleged maladministration in the application of Community law which would appear to be the act of an institution or body of the European Communities, of a public administrative body of a Member State, or of persons empowered by Community law to implement that law.
The decision to set up a committee of inquiry shall be published in the Official Journal of the European Union within one month. In addition, Parliament shall take all the necessary steps to make this decision as widely known as possible.
2. The modus operandi of a committee of inquiry shall be governed by the provisions of these Rules relating to committees, save as otherwise specifically provided for in this Rule and in the Decision of the European Parliament, the Council and the Commission of 19 April 1995 on the detailed provisions governing the exercise of the European Parliament's right of inquiry which is annexed to these Rules.
3. The request to set up a committee of inquiry must specify precisely the subject of the inquiry and include a detailed statement of the grounds for it. Parliament, on a proposal from the Conference of Presidents, shall decide whether to set up a committee and, if it decides to do so, on its composition, in accordance with the provisions of Rule 177.
4. A committee of inquiry shall conclude its work with the submission of a report within not more than twelve months. Parliament may twice decide to extend this period by three months.
Only full members or, in their absence, permanent substitutes may vote in a committee of inquiry.
5. A committee of inquiry shall elect its chair and two vice-chairs and appoint one or more rapporteurs. The committee may also assign responsibilities, duties or specific tasks to its members who must subsequently report to the committee in detail thereon.
In the interval between one meeting and another, the bureau of the committee shall, in cases of urgency or need, exercise the committee's powers, subject to ratification at the next meeting.
6. When a committee of inquiry considers that one of its rights has been infringed, it shall propose that the President take appropriate measures.
7. A committee of inquiry may contact the institutions or persons referred to in Article 3 of the Decision referred to in paragraph 2 with a view to holding a hearing or obtaining documents.
Travel and accommodation expenses of members and officials of Community institutions and bodies shall be borne by the latter. Travel and accommodation expenses of other persons who appear before a committee of inquiry shall be reimbursed by the European Parliament in accordance with the rules governing hearings of experts.
Persons called to give evidence before a committee of inquiry may claim the rights they would enjoy if acting as a witness before a tribunal in their country of origin. They must be informed of these rights before they make a statement to the committee.
With regard to the languages used, a committee of inquiry shall apply the provisions
of Rule 138. However, the bureau of the committee:
- may restrict interpretation to the official languages of those who are to take part in the deliberations, if it deems this necessary for reasons of confidentiality,
- shall decide about translation of the documents received in such a way as to ensure that the committee can carry out its deliberations efficiently and rapidly and that the necessary secrecy and confidentiality are respected.
8. The chair of a committee of inquiry shall, together with the bureau, ensure that the secrecy or confidentiality of deliberations are respected and shall give members due notice to this effect.
The chair shall also explicitly refer to the provisions of Article 2(2) of the Decision referred to above. Annex VII(A) of the Rules of Procedure shall apply.
9. Secret or confidential documents which have been forwarded shall be examined using technical measures to ensure that only the members responsible for the case have personal access to them. The members in question shall give a solemn undertaking not to allow any other person access to secret or confidential information, in accordance with this Rule, and to use such information exclusively for the purposes of drawing up their report for the committee of inquiry. Meetings shall be held on premises equipped in such a way as to make it impossible for any non-authorised persons to listen to the proceedings.
10. After completion of its work a committee of inquiry shall submit to Parliament a report on the results of its work, containing minority opinions if appropriate in accordance with the conditions laid down in Rule 48. The report shall be published.
At the request of the committee of inquiry Parliament shall hold a debate on the report at the part-session following its submission.
The committee may also submit to Parliament a draft recommendation addressed to institutions or bodies of the European Communities or the Member States.
11. The President shall instruct the committee responsible pursuant to Annex VI to monitor the action taken on the results of the work of the committee of inquiry and, if appropriate, to report thereon, and shall take any further steps which are deemed appropriate to ensure that the conclusions of the inquiry are acted upon in practice.
***
The Rules of Procedure add the following explanations to Rule 176:
Only the proposal from the Conference of Presidents concerning the composition of a committee of inquiry (paragraph 3) is open to amendments, in accordance with Rule 177(2).
The subject of the inquiry as defined by one-quarter of Parliament's component Members (paragraph 3) and the period laid down in paragraph 4 are not open to amendments.
***
Examples of Committees of Inquiry
Under the existing Decision (inter-institutional agreement) the following procedures can be mentioned. The interested readers can follow the procedures after the decisions setting up the Committees of inquiry:
A temporary committee of inquiry to investigate alleged contraventions or maladministration under the Community transit system [of goods under customs supervision], OJ 12.1.1996 C 7/1.
EP file to follow INI/1995/2321
European Parliament Decision of 17 July 1996 setting up a temporary commitee of inquiry to investigate alleged contraventions or maladministration in the implementation of Community law in relation to BSE, without prejudice to the jurisdiction of the national and Community courts, Official Journal 17.8.1996 C 239/1; plus follow-up committee.
Decision 2006/469/EC of the European Parliament of 18 January 2006 on setting up a Committee of Inquiry into the crisis of the Equitable Life Assurance Society, OJ 7.7.2006 L 186/58.
EP file INI/2006/2199
European Parliament decision setting up a temporary committee on the alleged use of European
countries by the CIA for the transportation and illegal detention of prisoners, based on P6_TA(2006)0012, published OJ 24.11.2006 C 287 E/159.
EP file 2006/2027(INI)
Ralf Grahn
We look at the current treaty provisions, the Treaty of Lisbon, detailed provisions, internal EP rules and a few examples of inquiries.
***
Current treaty
Article 193 of the Treaty establishing the European Community (TEC) foresees that an extraordinary Committee of Inquiry in relation to the implementation of Community law, to investigate:
· contraventions or
· maladministration.
The Committee of Inquiry is temporary. One quarter of the MEPs must request the setting up of the Committee, but the decision is taken by the plenary.
If the matter is being examined before a court, no Committee shall be set up during the proceedings, but otherwise the provision is without prejudice to other investigations and actions.
The text of Article 193 TEC is from the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/133:
Article 193 TEC
In the course of its duties, the European Parliament may, at the request of a quarter of its Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by this Treaty on other institutions or bodies, alleged contraventions or maladministration in the implementation of Community law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings.
The temporary Committee of Inquiry shall cease to exist on the submission of its report.
The detailed provisions governing the exercise of the right of inquiry shall be determined by common accord of the European Parliament, the Council and the Commission.
***
Original Lisbon Treaty
Article 2, point 182 of the original Treaty of Lisbon amended Article 193 TEC (OJEU 17.12.2007 C 306/102):
182) Article 193 shall be amended as follows:
(a) in the first paragraph, the words ‘of its Members’ shall be replaced by ‘of its component Members’;
(b) the third paragraph shall be replaced by the following:
‘The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure, after obtaining the consent of the Council and the Commission.’.
***
Consolidated Lisbon Treaty
In the consolidated (readable) Lisbon Treaty the provision appears renumbered as Article 226 of the Treaty on the Functioning of the European Union, TFEU (OJEU 9.5.2008 C 115/150):
Article 226 TFEU
(ex Article 193 TEC)
In the course of its duties, the European Parliament may, at the request of a quarter of its component Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by the Treaties on other institutions or bodies, alleged contraventions or maladministration in the implementation of Union law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings.
The temporary Committee of Inquiry shall cease to exist on the submission of its report.
The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure, after obtaining the consent of the Council and the Commission.
***
Comment
The addition of the word ‘component’ to the quarter of members needed for a request makes life easier for the reader, without changing the substance. In theory, this would mean 188 MEPs under the Lisbon Treaty, if it enters into force and if the actual number of members at some point tallies with the 751 intended by Article 14(2) TEU.
The decision to set up the Committee of Inquiry is still taken by majority vote.
The material scope of the provision encompasses the implementation of EU law. The greater part of the EU budget is spent in the member states, where most of the implementation of Union law takes place.
Rephrasing the third paragraph makes it into one of the few instances where a special legislative procedure emanates from the European Parliament (not the Council), but since the consent of the Council and the Commission is still needed, there is little change in practice.
***
Detailed provisions on Committees of Inquiry
Annex VIII of the European Parliament’s Rules of Procedure reproduces the text of Decision of the European Parliament, the Council and the Commission of 19 April 1995 on the detailed provisions governing the exercise of the European Parliament's right of inquiry (OJ 19.5.1995 L 113/2).
***
EP Rules of Procedure
Rule 176 of the European Parliament’s Rules of Procedure (16th edition, October 2008) provides detailed internal provisions on Committees of inquiry:
Rule 176 Committees of inquiry
1. Parliament may, at the request of one-quarter of its component Members, set up a committee of inquiry to investigate alleged contraventions of Community law or alleged maladministration in the application of Community law which would appear to be the act of an institution or body of the European Communities, of a public administrative body of a Member State, or of persons empowered by Community law to implement that law.
The decision to set up a committee of inquiry shall be published in the Official Journal of the European Union within one month. In addition, Parliament shall take all the necessary steps to make this decision as widely known as possible.
2. The modus operandi of a committee of inquiry shall be governed by the provisions of these Rules relating to committees, save as otherwise specifically provided for in this Rule and in the Decision of the European Parliament, the Council and the Commission of 19 April 1995 on the detailed provisions governing the exercise of the European Parliament's right of inquiry which is annexed to these Rules.
3. The request to set up a committee of inquiry must specify precisely the subject of the inquiry and include a detailed statement of the grounds for it. Parliament, on a proposal from the Conference of Presidents, shall decide whether to set up a committee and, if it decides to do so, on its composition, in accordance with the provisions of Rule 177.
4. A committee of inquiry shall conclude its work with the submission of a report within not more than twelve months. Parliament may twice decide to extend this period by three months.
Only full members or, in their absence, permanent substitutes may vote in a committee of inquiry.
5. A committee of inquiry shall elect its chair and two vice-chairs and appoint one or more rapporteurs. The committee may also assign responsibilities, duties or specific tasks to its members who must subsequently report to the committee in detail thereon.
In the interval between one meeting and another, the bureau of the committee shall, in cases of urgency or need, exercise the committee's powers, subject to ratification at the next meeting.
6. When a committee of inquiry considers that one of its rights has been infringed, it shall propose that the President take appropriate measures.
7. A committee of inquiry may contact the institutions or persons referred to in Article 3 of the Decision referred to in paragraph 2 with a view to holding a hearing or obtaining documents.
Travel and accommodation expenses of members and officials of Community institutions and bodies shall be borne by the latter. Travel and accommodation expenses of other persons who appear before a committee of inquiry shall be reimbursed by the European Parliament in accordance with the rules governing hearings of experts.
Persons called to give evidence before a committee of inquiry may claim the rights they would enjoy if acting as a witness before a tribunal in their country of origin. They must be informed of these rights before they make a statement to the committee.
With regard to the languages used, a committee of inquiry shall apply the provisions
of Rule 138. However, the bureau of the committee:
- may restrict interpretation to the official languages of those who are to take part in the deliberations, if it deems this necessary for reasons of confidentiality,
- shall decide about translation of the documents received in such a way as to ensure that the committee can carry out its deliberations efficiently and rapidly and that the necessary secrecy and confidentiality are respected.
8. The chair of a committee of inquiry shall, together with the bureau, ensure that the secrecy or confidentiality of deliberations are respected and shall give members due notice to this effect.
The chair shall also explicitly refer to the provisions of Article 2(2) of the Decision referred to above. Annex VII(A) of the Rules of Procedure shall apply.
9. Secret or confidential documents which have been forwarded shall be examined using technical measures to ensure that only the members responsible for the case have personal access to them. The members in question shall give a solemn undertaking not to allow any other person access to secret or confidential information, in accordance with this Rule, and to use such information exclusively for the purposes of drawing up their report for the committee of inquiry. Meetings shall be held on premises equipped in such a way as to make it impossible for any non-authorised persons to listen to the proceedings.
10. After completion of its work a committee of inquiry shall submit to Parliament a report on the results of its work, containing minority opinions if appropriate in accordance with the conditions laid down in Rule 48. The report shall be published.
At the request of the committee of inquiry Parliament shall hold a debate on the report at the part-session following its submission.
The committee may also submit to Parliament a draft recommendation addressed to institutions or bodies of the European Communities or the Member States.
11. The President shall instruct the committee responsible pursuant to Annex VI to monitor the action taken on the results of the work of the committee of inquiry and, if appropriate, to report thereon, and shall take any further steps which are deemed appropriate to ensure that the conclusions of the inquiry are acted upon in practice.
***
The Rules of Procedure add the following explanations to Rule 176:
Only the proposal from the Conference of Presidents concerning the composition of a committee of inquiry (paragraph 3) is open to amendments, in accordance with Rule 177(2).
The subject of the inquiry as defined by one-quarter of Parliament's component Members (paragraph 3) and the period laid down in paragraph 4 are not open to amendments.
***
Examples of Committees of Inquiry
Under the existing Decision (inter-institutional agreement) the following procedures can be mentioned. The interested readers can follow the procedures after the decisions setting up the Committees of inquiry:
A temporary committee of inquiry to investigate alleged contraventions or maladministration under the Community transit system [of goods under customs supervision], OJ 12.1.1996 C 7/1.
EP file to follow INI/1995/2321
European Parliament Decision of 17 July 1996 setting up a temporary commitee of inquiry to investigate alleged contraventions or maladministration in the implementation of Community law in relation to BSE, without prejudice to the jurisdiction of the national and Community courts, Official Journal 17.8.1996 C 239/1; plus follow-up committee.
Decision 2006/469/EC of the European Parliament of 18 January 2006 on setting up a Committee of Inquiry into the crisis of the Equitable Life Assurance Society, OJ 7.7.2006 L 186/58.
EP file INI/2006/2199
European Parliament decision setting up a temporary committee on the alleged use of European
countries by the CIA for the transportation and illegal detention of prisoners, based on P6_TA(2006)0012, published OJ 24.11.2006 C 287 E/159.
EP file 2006/2027(INI)
Ralf Grahn
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