Section 1 – Introduction The Ombudsman – an independent official of a State which investigates complaints of citizens on grounds of maladministration. Each and every democratic state has an established office of the Ombudsman to seek to ensure that individuals are protected in possible situations of substantial imbalance of power.
The office of the European Ombudsman was established for the benefit of all European citizens who are able to gain redress when maladministration issues occur within the various European Union offices, Institutions, bodies and agencies. The only institution excluded from the list is the Court of Justice of the European Union which acts in its judicial role). Thus, the responsibilities of the European Ombudsman, who elected after each election of the European Parliament are considerable.As per its Mission statement “The European Ombudsman seeks fair outcomes to complaints against European Union institutions, encourages transparency, and promotes an administrative culture of service. He aims to build trust through dialogue between citizens and the European Union and to foster the highest standards of behaviour in the Union’s institutions”.Section 2 – Establishment of the OfficeArt. 228 of the Treaty of the Functioning of the European Union ?hereinafter referred to as ‘TFEU’? establishes the office of the European Ombudsman and expressly empowers the Ombudsman 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.
‘This article indicates clearly the functions and duties of the Ombudsman which inter alia include: i? Carrying out inquiriesThe Ombudsman is required to carry out inquiries after receiving complaints which necessitate further investigation. Complaints may be lodged to the office of the Ombudsman either by the aggrieved person himself/herself or through a member of the European Parliament. Following the inquiry, the Ombudsman shall refer his findings report to the concerned office, body, institution or agency, which shall then get back to him/her with its views before the period of three months have lapsed. Following the receipt of feedback, the Ombudsman shall prepare a final report, which includes his views and conclusions. Such report is then forwarded to the European Parliament and the institution, body, office or agency concerned. The person lodging the complaint shall be kept in the loop with regards to the outcome of such inquiries.
Clear communication and access of information is of fundamental importance in the exercise of the Ombudsman’s duties since it ensures transparency of the whole process. ii? Educating citizensThe Office of the Ombudsman apart from seeking to ensure transparency and fairness within the operations of the State’s administration in the various member states and within the offices and institutions of the Union, it also seeks to educate and inform citizens about their rights, especially those established and enshrined under the Lisbon Treaty and the EU Charter of Fundamental Rights. It is fundamental for the Ombudsman to ensure that citizens are informed about their rights, since otherwise they are not aware of the ‘services’ which the Office provides. Between February and March 2011, the Office of the Ombudsman with the involvement of the European Parliament and TNS Opinion & Social, engaged in a field-word exercise to gauge the citizen’s knowledge about their fundamental rights and the role of the Ombudsman.
The survey was conducted on a face to face basis, and the below key-findings ensued: Seventy-two percent (72%) of respondents say they do not feel informed about the Charter of Fundamental RightsThe second most important citizens’ right, according to the respondents, is the right to good administration, followed by the right to lodge complaints with the Ombudsman. Satisfaction with the EU administration is generally low when it comes to its effectiveness, service-mindedness, and transparency. A majority of respondents (52%) thinks that the Ombudsman’s most important function is to ensure that EU citizens know their rights and how to use them.
Roughly half of respondents would like to know more about what the Ombudsman does. This fieldwork exercise enabled the office of the Ombudsman to embark on a more practical and informative mission statement. In recent years, the Ombudsman has continuously sought to keep the general public informed about its functions and duties, and furthermore, of informing citizens about their rights. This is evidenced from the jam packed calendar of the Office which includes numerous activities which the Office organises for the citizens of the Union. While the main role of the Ombudsman is to help to improve the standard of administration within the Institutions through investigation of complaints, in 2016 the Ombudsman sought to engage in a step further and introduced another manner in which the Office can help and contribute towards the proper administration of the Union. Thus, a pilot project of the Award for Good Administration was established. This initiative sought to highlight and share best practices which enable learning from one EU body to another. Every institution, agency and EU body was invited to participate in this initiative and showcase their efforts which helped to improve the citizen’s experience in the European Union throughout their ordinary course of work.
The overall winner which was announced in March 2017 was a project prepared by the European Commission, DG SANTE titled, EU collaboration to help patients with rare diseases. iii? IndependenceThe Ombudsman has the duty to act independently when carrying out its functions of office. The Ombudsman shall neither seek nor take instructions from any Government, body, institution, office or entity. Furthermore, s/he is prohibited from engaging in any other occupation during his term in Office. A set of general conditions and regulations exists which govern the performance of the Ombudsman’s duties. Such list is laid down by the European Parliament acting in accordance with a special legislative procedure, after seeking an opinion from the Commission and with the consent of the Council.Section 3 – Appointment of the OmbudsmanThe Ombudsman is elected after each election of the European Parliament i.
e. once every five years. A notice calling for nominations for the office of Ombudsman shall be published in the Official Journal of the European Union at the start of each parliamentary term, immediately after the President’s election. Interested individuals must be supported by at least forty Members who are nationals of at least two Member States. When submitting a nomination, the nominee shall include all the supporting documentation needed to fulfil the conditions laid down in the Regulations on the Ombudsman. Following the presentation of the list of nominees, the committee responsible for the appointment procedure may ask to hear the nominees, whereby such hearings shall be open to all Members.
The Ombudsman is allowed for re-appointment after the expiration of the first term. The vote to appoint a new Ombudsman shall be held by secret ballot on the basis of a majority of the total number of votes cast. Before opening the vote, the President shall confirm that at least half of Parliament’s component Members are present.
In the case of a tie, the eldest candidate shall prevail. The elected person shall exercise his duties until his successor takes office, except in the case of his death or dismissal.The Court of Justice of the European Union has the power to dismiss the Ombudsman from office on grounds that s/he no longer fulfills the duties and responsibilities assumed by the Office, after failing to resign following Parliament’s decision. Grounds of serious misconduct give rise to the possibility of dismissal from Office as is outlined under Art. 228 sub-article 2 of TFEU. The incumbent European Ombudsman is Emily O’Reilly who was first elected in July 2013. Following the European Parliament elections, she was re-elected for a five year mandate in December 2014. Section 4 – Case LawThis section will highlight a number of cases in which the Ombudsman was involved.
I. Query Q6/2016/EIS from the Ombudsman of Malta concerning the transposition of relevant EU rules on road safety and access to environmental information into the national legal order in MaltaHereby, the European Ombudsman received a letter from the Maltese Commissioner for Environment and Planning concerning the transposition of relevant EU rules on road safety (Regulations 540/2014 and 168/2013) and access to environmental information (Directive 2003/4/EC) into the national legal order in Malta. The Commissioner had doubts as to whether the national law is in line with the requirements set out in EU law and thus, the Maltese Ombudsman requested the European Ombudsman to seek an opinion on the case from the European Commission.The European Ombudsman decided to open a query procedure in order to seek an opinion of the Commission’s services as regards the following:How should EU law, which provides that motor vehicles and motorcycles must be in roadworthy condition and meet the same safety standards as when they were first registered, be transposed into the Member States’ legislation? Does the Maltese implementing act (Product safety act L.N. 50/2008) appear to be in line with the relevant requirements set out in EU law?The Commission had provided an exhaustive reply concerning the interpretation of the relevant provisions. As agreed with the Maltese Commissioner, the Ombudsman transferred the comments of the NGO in question to the Commission, which will deal with them as an infringement complaint.II.
Case: 1769/2017/JAS – European Chemical’s Agency Handling.The case concerned the European Chemicals Agency’s (ECHA) correspondence with the complainant, a British national, in response to his concerns on ECHA’s hazard assessment of glyphosate, an active ingredient in weed-killers.The Ombudsman inquired into the issue and found that ECHA had held a public consultation during its assessment. The complainant had not availed himself of the opportunity to contribute to that public consultation.
Nevertheless, ECHA replied to the complainant’s concerns.The Ombudsman concluded that ECHA had adequately communicated with the complainant and that there had thus been no maladministration by ECHA.Section 5 – Concluding remarksAs already outlined throughout this paper, the Office of the Ombudsman seeks to bridge the gap between the citizens of the Union and the administration of the bodies of the State, which naturally is no easy task. Furthermore, at its forefront is the notion of transparency across all the institutions, agencies and bodies of the Union. One must admit that the incumbent Ombudsman is seeking to ensure that these values and pillars of office are followed, this is evidenced in light of the recent news whereby the Office of the Ombudsman requested President Tusk to publish meetings with lobbyists. Ms. O’ Reilly opined that publishing such meetings further enhances the principle of transparency since it allows the general public to have a holistic picture as to who are the stakeholders and influencers of the Union’s decision making. This initiative by the Ombudsman shows that the interests of the public are being voiced and placed at the forefront, a fundamental attribute of the role of the Ombudsman.