# CE2009259EN.01011601.xml

| 29.10.2009 | EN | Official Journal of the European Union | CE 259/116 |
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29.10.2009

EN

Official Journal of the European Union

CE 259/116

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Statute of the European Ombudsman

P6_TA(2008)0129

Draft Decision of the European Parliament adopted on 22 April 2008 amending its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (2006/2223(INI))

(2009/C 259 E/22)

The following draft Decision was adopted (1) and transmitted to the Council and the Commission in accordance with Article 195(4) of the EC Treaty and Article 107d(4) of the Euratom Treaty:

1

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(1)  The vote on the motion for a resolution (A6-0076/2008) was adjourned pending the conclusion of the procedure under Article 195(4) of the EC Treaty and Article 107d(4) of the Euratom Treaty.

1

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Decision of the European Parliament amending Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties

THE EUROPEAN PARLIAMENT,

Having regard to the Treaty establishing the European Community, and in particular Article 195(4) thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 107d(4) thereof,

Having regard to its resolution of ... on a proposal for a decision of the European Parliament amending its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties,

Having regard to the opinion of the Commission,

With the approval of the Council,

Whereas:

| (1) | The Charter of Fundamental Rights of the European Union (1) recognises the right to good administration as a fundamental right of citizens of the Union. |
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(1)

The Charter of Fundamental Rights of the European Union (1) recognises the right to good administration as a fundamental right of citizens of the Union.

| (2) | Citizens' confidence in the capacity of the Ombudsman to conduct thorough and impartial inquiries in alleged cases of maladministration is fundamental to the success of the Ombudsman's action. |
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(2)

Citizens' confidence in the capacity of the Ombudsman to conduct thorough and impartial inquiries in alleged cases of maladministration is fundamental to the success of the Ombudsman's action.

| (3) | It is desirable to adapt the Statute of the Ombudsman in order to eliminate any possible uncertainty concerning the capacity of the Ombudsman to conduct thorough and impartial inquiries in alleged cases of maladministration. |
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(3)

It is desirable to adapt the Statute of the Ombudsman in order to eliminate any possible uncertainty concerning the capacity of the Ombudsman to conduct thorough and impartial inquiries in alleged cases of maladministration.

| (4) | It is desirable to adapt the Statute of the Ombudsman in order to allow for any possible evolution of the legal provisions or of case law concerning the intervention of bodies, offices and agencies of the European Union in cases before the Court of Justice. |
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(4)

It is desirable to adapt the Statute of the Ombudsman in order to allow for any possible evolution of the legal provisions or of case law concerning the intervention of bodies, offices and agencies of the European Union in cases before the Court of Justice.

| (5) | It is desirable to adapt the Statute of the Ombudsman to take account of the changes that have occurred in recent years as regards the role of EU institutions and bodies in combating fraud against the financial interests of the European Union, notably the creation of the European Anti-Fraud Office (OLAF), so as to allow the Ombudsman to notify those institutions or bodies of any information falling within their remit. |
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(5)

It is desirable to adapt the Statute of the Ombudsman to take account of the changes that have occurred in recent years as regards the role of EU institutions and bodies in combating fraud against the financial interests of the European Union, notably the creation of the European Anti-Fraud Office (OLAF), so as to allow the Ombudsman to notify those institutions or bodies of any information falling within their remit.

| (6) | It is desirable to take steps so as to allow the Ombudsman to develop his or her cooperation with similar institutions at national and international level as well as with national or international institutions even where they cover a wider range of activities than the European Ombudsman — such as the protection of human rights –, since such cooperation may make a positive contribution towards enhancing the efficiency of the Ombudsman's action. |
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(6)

It is desirable to take steps so as to allow the Ombudsman to develop his or her cooperation with similar institutions at national and international level as well as with national or international institutions even where they cover a wider range of activities than the European Ombudsman — such as the protection of human rights –, since such cooperation may make a positive contribution towards enhancing the efficiency of the Ombudsman's action.

| (7) | The Treaty establishing the European Coal and Steel Community expired in 2002, |
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(7)

The Treaty establishing the European Coal and Steel Community expired in 2002,

HAS DECIDED AS FOLLOWS:

Article 1

Citation 1, Recital 3, Article 1(1), subparagraphs 1 and 5 of Article 3(2), Article 4 and Article 5 of Decision 94/262/ECSC, EC, Euratom are amended as follows:

| OMBUDSMAN'S STATUTE | PROPOSAL FOR AMENDMENT |
| --- | --- |
| Amendment 1

  Citation 1 |
| Having regard to the Treaties establishing the European Communities, and in particular Article 195(4) of the Treaty establishing the European Community,
  Article 20d(4) of the Treaty establishing the European Coal and Steel Community
  and Article 107d(4) of the Treaty establishing the European Atomic Energy Community, | Having regard to the Treaties establishing the European Communities, and in particular Article 195(4) of the Treaty establishing the European Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community, |
| Amendment 2

  Recital 3 |
| Whereas the Ombudsman, who may also act on his own initiative, must have access to all the elements required for the performance of his duties; whereas to that end Community institutions and bodies are obliged to supply the Ombudsman, at his request, with any information which he requests of them,
  unless there are duly substantiated grounds for secrecy,
  and without prejudice to the Ombudsman's obligation not to divulge such information; whereas the Member States' authorities are obliged to provide the Ombudsman with all necessary information save where such information is covered by rules or regulations on secrecy or by provisions preventing its being communicated; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations; | Whereas the Ombudsman, who may also act on his own initiative, must have access to all the elements required for the performance of his duties; whereas to that end Community institutions and bodies are obliged to supply the Ombudsman, at his request, with any information which he requests of them and without prejudice to the Ombudsman's obligation not to divulge such information
  and to treat classified information or documents in accordance with rules strictly equivalent to those in force in the institutions or bodies in question; whereas the institutions or bodies supplying classified information or documents shall notify the Ombudsman of such classification; whereas the Ombudsman and the institutions and bodies in question should agree on the operational conditions for the supplying of classified information or documents
  ; whereas the Member States' authorities are obliged to provide the Ombudsman with all necessary information save where such information is covered by rules or regulations on secrecy or by provisions preventing its being communicated; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations; |
| Amendment 3

  Article 1, paragraph 1 |
| 1. | The regulations and general conditions governing the performance of the Ombudsman's duties shall be as laid down by this Decision in accordance with Article 195(4) of the Treaty establishing the European Community,
  Article 20d(4) of the Treaty establishing the European Coal and Steel Community
  and Article 107d(4) of the Treaty establishing the European Atomic Energy Community. |

OMBUDSMAN'S STATUTE

PROPOSAL FOR AMENDMENT

Amendment 1

Citation 1

Having regard to the Treaties establishing the European Communities, and in particular Article 195(4) of the Treaty establishing the European Community,
  Article 20d(4) of the Treaty establishing the European Coal and Steel Community
  and Article 107d(4) of the Treaty establishing the European Atomic Energy Community,

Having regard to the Treaties establishing the European Communities, and in particular Article 195(4) of the Treaty establishing the European Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community,

Amendment 2

Recital 3

Whereas the Ombudsman, who may also act on his own initiative, must have access to all the elements required for the performance of his duties; whereas to that end Community institutions and bodies are obliged to supply the Ombudsman, at his request, with any information which he requests of them,
  unless there are duly substantiated grounds for secrecy,
  and without prejudice to the Ombudsman's obligation not to divulge such information; whereas the Member States' authorities are obliged to provide the Ombudsman with all necessary information save where such information is covered by rules or regulations on secrecy or by provisions preventing its being communicated; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations;

Whereas the Ombudsman, who may also act on his own initiative, must have access to all the elements required for the performance of his duties; whereas to that end Community institutions and bodies are obliged to supply the Ombudsman, at his request, with any information which he requests of them and without prejudice to the Ombudsman's obligation not to divulge such information
  and to treat classified information or documents in accordance with rules strictly equivalent to those in force in the institutions or bodies in question; whereas the institutions or bodies supplying classified information or documents shall notify the Ombudsman of such classification; whereas the Ombudsman and the institutions and bodies in question should agree on the operational conditions for the supplying of classified information or documents
  ; whereas the Member States' authorities are obliged to provide the Ombudsman with all necessary information save where such information is covered by rules or regulations on secrecy or by provisions preventing its being communicated; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations;

Amendment 3

Article 1, paragraph 1

1.

The regulations and general conditions governing the performance of the Ombudsman's duties shall be as laid down by this Decision in accordance with Article 195(4) of the Treaty establishing the European Community,
  Article 20d(4) of the Treaty establishing the European Coal and Steel Community
  and Article 107d(4) of the Treaty establishing the European Atomic Energy Community.

| 1. | The regulations and general conditions governing the performance of the Ombudsman's duties shall be as laid down by this Decision in accordance with Article 195(4) of the Treaty establishing the European Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community. |
| --- | --- |

1.

The regulations and general conditions governing the performance of the Ombudsman's duties shall be as laid down by this Decision in accordance with Article 195(4) of the Treaty establishing the European Community and Article 107d(4) of the Treaty establishing the European Atomic Energy Community.

Amendment 4

Article 3, paragraph 2, subparagraph 1

| 2. | The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned.
  They may refuse only on duly substantiated grounds of secrecy. |
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2.

The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned.
  They may refuse only on duly substantiated grounds of secrecy.

| 2. | The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned.
  Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001 (2),


  shall be subject to observance by the Ombudsman of rules strictly equivalent to those in force in the institutions or bodies in question.




  The institutions or bodies supplying classified information or documents as mentioned in the first subparagraph shall inform the Ombudsman of such classification.




  For the implementation of rules provided for in the first subparagraph, the Ombudsman may agree with the institutions or bodies the operational conditions for access to classified information and other information covered by the obligation of professional secrecy. |
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2.

The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned.
  Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001 (2),


  shall be subject to observance by the Ombudsman of rules strictly equivalent to those in force in the institutions or bodies in question.

The institutions or bodies supplying classified information or documents as mentioned in the first subparagraph shall inform the Ombudsman of such classification.

For the implementation of rules provided for in the first subparagraph, the Ombudsman may agree with the institutions or bodies the operational conditions for access to classified information and other information covered by the obligation of professional secrecy.

Amendment 5

Article 3, paragraph 2, subparagraph 5

Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall
  speak on behalf of and in accordance with instructions from their administrations and shall
  continue to be bound by their duty of professional secrecy.

Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall continue to be bound by
  the relevant rules of the Staff Regulations, notably
  their duty of professional secrecy.

Amendment 6

Article 4

| 1. | The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community,
  Article 47(2) of the Treaty establishing the European Coal and Steel Community
  and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall also be required
  to treat in confidence
  any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2. |
| --- | --- |

1.

The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community,
  Article 47(2) of the Treaty establishing the European Coal and Steel Community
  and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall also be required
  to treat in confidence
  any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2.

| 1. | The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall also be required
  not to divulge any classified information or any document supplied to the Ombudsman as sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, or as documents falling within the scope of the Community legislation regarding the protection of personal data, as well as
  any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2.


  The Ombudsman and his staff shall deal with applications from third parties for access to documents obtained by the Ombudsman in the course of inquiries in accordance with the conditions and limits provided for in Regulation (EC) No 1049/2001, in particular Article 4 thereof. |
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1.

The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall also be required
  not to divulge any classified information or any document supplied to the Ombudsman as sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, or as documents falling within the scope of the Community legislation regarding the protection of personal data, as well as
  any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2.

The Ombudsman and his staff shall deal with applications from third parties for access to documents obtained by the Ombudsman in the course of inquiries in accordance with the conditions and limits provided for in Regulation (EC) No 1049/2001, in particular Article 4 thereof.

| 2. | If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities
  and
  , if appropriate, the Community institution with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view. |
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2.

If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities
  and
  , if appropriate, the Community institution with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view.

| 2. | If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities
  or the competent Community institution or body
  ; if appropriate,
  the Ombudsman shall also notify
  the Community institution
  or body
  with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view. |
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2.

If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities
  or the competent Community institution or body
  ; if appropriate,
  the Ombudsman shall also notify
  the Community institution
  or body
  with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view.

Amendment 7

Article 5

Insofar as it may help to make his enquiries more efficient and better safeguard the rights and interests of persons who make complaints to him, the Ombudsman may cooperate with authorities of the same type in certain Member States provided he complies with the national law applicable. The Ombudsman may not by this means demand to see documents to which he would not have access under Article 3.

Insofar as it may help to make his enquiries more efficient and better safeguard the rights and interests of persons who make complaints to him, the Ombudsman may cooperate with authorities of the same type in certain Member States provided he complies with the national law applicable. The Ombudsman may not by this means demand to see documents to which he would not have access under Article 3.
  The Ombudsman may, under the same conditions, cooperate with other institutions for the promotion and protection of fundamental rights.

Article 2

This decision shall be published in the Official Journal of the European Union.

Article 3

This decision shall enter into force on the date of its publication in the Official Journal of the European Union.

Done at ..., on ...

For the European Parliament

The President

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(1)  OJ C 303, 14.12.2007, p. 1.

1

(2)  
  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).

2

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).

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