Written by Silvia Kotanidis,
Over more than 20 years, the European Ombudsman’s office has established a reputation and working methods that reflect the work of the three different office-holders to date. Without real power of enforcement, the Ombudsman’s strength lies in the exercise of ‘soft power’, an approach based on the idea that change within an administration comes from understanding where shortcomings occur and an openness to remedying them.
The Ombudsman’s mission pivots around the notion of ‘maladministration’, an open-ended concept that encompasses, but goes beyond, legality. Borrowing an expression from a previous Ombudsman, referring to maladministration as a ‘life beyond legality’, maladministration can be identified with those aspects of administrative behaviour which it is not necessarily possible to subject to judicial review, such as lack of transparency, negligence, delays, service-mindedness, and impartiality.
The Ombudsman can act in both a reactive and a proactive role. On the reactive side, the Ombudsman analyses complaints from citizens, companies or associations and endeavours to reach a ‘friendly solution’. If this is not possible, and maladministration is uncovered, the Ombudsman issues recommendations to address the issue, to which the European Union institutions must react within three months. If, after that, the recommendation is not accepted, the Ombudsman issues a ‘finding of maladministration’. The Ombudsman may also, however, issue recommendations where there is no clear finding of maladministration but nevertheless identifies improvements to the system to propose. In this proactive role, the Ombudsman may begin investigation on the office’s own initiative if, as the result of a complaint or from another source, occurrence of maladministration is suspected in a specific field.
The activity of the Ombudsman can be assessed based on the Ombudsman’s annual reports from 2009 to 2017, which show that the Ombudsman is most engaged regarding matters of transparency, including access to documents (20-30 %). The second area where the Ombudsman is concerned (9‑21 %) appears to be the Commission’s role as ‘guardian of the Treaties’, where the reasonableness of the exercise of that role comes into play. A further 15‑20 % of the Ombudsman’s activities concern a heterogeneous area encompassing broader administrative behaviour, while 13‑19 % concerns financial or contractual issues, such as delays in payments to suppliers. The Commission’s proactive role is also to be highlighted, as a way in which the Ombudsman can exercise a certain influential ‘political’ leverage, by highlighting a specific topic. In recent years, increased strategic use of own-initiative inquiries for issues connected with democratic enhancement and EU institutional ethics, such as accountability, integrity and transparency, can also be observed.
This paper explores possible modifications to the Ombudsman’s Statute that could range from minimal to more substantial ones. While the former could amount to consolidating some established practices, e.g. that of informing the committee responsible for an issue instead of submitting a special report to Parliament, or formalising the existence of the European Network of Ombudsmen, more substantial changes could give the Ombudsman power to refer matters to the Court of Justice of the European Union (CJEU), or to intervene in cases pending before the Court. Both these latter proposals, explored in the literature, however confront counter-arguments that depend highly on the type of Ombudsman that is ultimately desired, as attention must be paid to avoid denaturing the role of the European Ombudsman as it currently stands.
Read the complete In-depth analysis on ‘The European Ombudsman: Reflections on the role and its potential‘ on the Think Tank pages of the European Parliament.