Annual Report 1999

(2000/C 260/01)

Strasbourg, April 2000

MRS NICOLE FONTAINE

President

European Parliament rue Wiertz B - 1047 Bruxelles Mrs President,

In accordance with Article 195 (1) of the Treaty establishing the European Community and Article 3 (8) of the Decision of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, I hereby present my report for the year 1999.

Jacob SÖDERMAN

Ombudsman of the European Union

TABLE OF CONTENTS

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1. FOREWORD

ALL FOR RESULTS

The work of an ombudsman's office can be described in many ways. It should raise the quality of the public administration from the point of view of the citizen, it should enhance the relations between the citizens and the administration by its activities, it should provide standards of good administration and it should act to undo cases of maladministration and much more. The most essential task remains to intervene to assist citizens so that they are treated fairly and obtain promptly what they have the right to expect from the administration.

During the year, the European Ombudsman's activities have, to my mind, reached the level that one has the right to expect of a body which is just over four years old and consists of 25 persons working in a fairly complex legal and administrative environment.

In 1999, we received 1577 complaints (compared to 1372 in 1998), opened 206 inquiries (171 in 1998) into possible maladministration and launched five own initiatives (compared to only one in 1998). Of the complaints where an inquiry took place, 27 were closed with a critical remark to the institution or body concerned, 62 were settled by the institution in the complainant's favour, in one case a friendly solution was found and ten draft recommendations were issued to undo maladministration (compared to only one in 1998). Of the draft recommendations, 2 were promptly accepted and one led to a Special Report to the European Parliament. The institution concerned later accepted the recommendation which was included in the Special Report. In 107 cases (96 in 1998) no maladministration was found, but the complainant received a full explanation of why the contested decision had been made.

Furthermore we have managed, with only a few exceptions, to acknowledge receipt of complaints within one week and to decide on their admissibility within one month. The target of closing cases after an inquiry within one year has not yet been reached. About 40 cases more than one year old are still open, but the back-log is slowly diminishing. There is always more to be done to develop the activities in order to obtain better results for the citizens, but it is obvious that the year 1999 was the best so far. It is to be underlined that the institutions and bodies themselves have settled 62 cases (51 in 1998). In fact, this means that they found a friendly solution of their own when the complaint was drawn to their attention by the Ombudsman. This is very good for the complainants as it saves precious time. It also shows a good attitude within the administration to undo its errors, which must be mentioned as a sign of a profoundly positive attitude to the European citizens.

DISPUTES

The constructive cooperation which we have had with the Community institutions and bodies has made our work for the European citizens more effective. In most cases the institutions and bodies have responded in time and with a comprehensive explanation to the allegations put forward by the complainants. This has made it easier to discover the essential aspects of the case and what has really happened. However, some problems remain as regards the European Commission, whose activities are the major focus for the Ombudsman's inquiries: 163 out of 206.

There was an attempt by the services of the Commission to raise once again the idea that questions concerning the Commission's interpretation of Community law can be dealt with only by the Court of Justice and not the European Ombudsman. This dispute is explained in more detail in the Annual report itself. Let me only say, hoping this is the last time I have to underline it, that it is never good administration not to follow the law; that is rules or principles, that are binding upon a Community institution or body. In the two European countries where the national ombudsman cannot deal with cases for which a judicial remedy is possible, this limitation is expressively stated in the law itself. This is not the case for the European Ombudsman's mandate which was laid down by the Maastricht Treaty.

Furthermore if the Ombudsman's activity can prevent unnecessary litigation and so alleviate the burden of the Courts' present heavy workload this seems only positive for all parties. It should also be noted that, because of the limitations which Community law imposes on access to the courts, in many cases where unlawful actions by Community institutions and bodies are alleged the Ombudsman seems to be the citizen's only remedy. It goes without saying that the Ombudsman's decisions are always guided by the case-law of the Community Courts.

Another time-consuming dispute with the Commission concerned the Ombudsman's right to inspect documents. This subject was dealt with in more detail in the Annual Report for 1998. Although a satisfactory result was once again reached in 1999 after the usual misunderstandings and bizarre arguments, I have presented an initiative to the European Parliament to amend the part of the Statute of the Ombudsman that produces these disputes. It should be underlined that for all ombudsman offices it is important to have, as OLAF has been recently given, unlimited access to the documents needed for the investigation of a complaint. Otherwise the citizens do not trust the Ombudsman's investigations. At the same time, it is quite clear that the Ombudsman must respect the confidentiality of documents where it is correctly imposed and not reveal their contents publicly. I do hope that the European Parliament will deal with this initiative vigorously and that the other institutions will accept my arguments in this matter.

OPENNESS

During the year no major progress was made in the field of transparency or openness. The Commission was expected to produce a draft regulation on public access to documents under Article 255 EC, but no text was published during the year. Only a few leaks of its provisions became public, which usually met harsh criticism from organisations of journalists and other activists in this field. For the Ombudsman, this is an important issue as lack of information or wrong information is still the most frequent allegation in the complaints (23 %).

The reason which is often given for maintaining traditional confidentiality - efficiency - seems rather paradoxical. Was it really efficient for the Santer Commission to collapse in March, leaving the Union's activities badly hampered for half a year in the absence of a lead from an active Commission? An important reason for the collapse was what had been done behind the curtain of confidentiality. Furthermore, experience shows that open administration, which is practised in many Member States, seems to be an effective tool against fraud and corruption, while a closed and confidential handling of public affairs appears to provide opportunities for fraud and corruption. I find it disturbing that those who oppose the increasing demands for more openness overlook this important point.

Whatever their arguments and reasons may be, the fact remains that their stubborn opposition to the necessary opening up of the Union administration in a modern way obscures the details of European Union funding, one of areas in which the Union is most criticised. Prevention is better than anything else, even the best police force can afterwards only address a small part of the undesirable activities which may occur in this field.

WHAT IS GOOD ADMINISTRATION?

In the Annual report for 1997 we presented a definition of the term maladministration which the European Parliament unanimously agreed to and which is now generally accepted. But to go further we presented a proposal for a Code of good administrative behaviour in July 1999. The Commission had been working on its own version of such a Code since 1997, but when the Commission collapsed in March the matter appeared to lapse and it was time for the Ombudsman's office to take up the challenge of publishing a Code of good administrative behaviour. The Ombudsman's Code is not concerned with the relations between management and civil servants. It deals with relations between citizens and civil servants. Its focus is the service which European citizens have the right to expect from the European civil service. To promote the idea we opened an own initiative inquiry into the matter.

The general attitude among the Community institutions and bodies was positive. Some told us that they had already adopted a Code of this type. One, the European Agency for the Evaluation of Medicinal Products in London, adopted our recommended draft with some positive changes, while others started to draft own versions. The Commission announced that they had given a first reading to their own version prior to negotiations with their staff and invited the Ombudsman to comment on it. At first sight, this version seemed fairly vague from the point of view of the European citizens.

A Code of good administrative behaviour of high quality would give the European citizens a positive message of a service-minded administration. That would be good for the Union's reputation in the Member States as a whole. It would also give the European citizens clear information as to what kind of service they have the right to expect and advise the officials what they should manage to deliver. The Code does not contain anything which could not be achieved with adequate commitment from management and training for staff. The own-initiative inquiry is still open, but in my view the large spectrum of responses already received indicates that it might be better to consider a legal initiative to create a European Administrative Law on good administrative behaviour, following the example of many Member States. That means that either the Commission should take the lead by itself adopting a good Code as a first step, or the European Parliament should consider an initiative in this matter in due time. Adopting such a Code of good administrative behaviour would demonstrate to European citizens that the Union has a modern and service-minded administration ready to work for the benefit of citizens and that it should not be made the scapegoat for all the problems in Europe.

MORE COOPERATION

When something does not work in the public sector the traditional attitude is to ask for more money or more powers, not to try to achieve results by more dialogue and more cooperation.

The proportion of complaints outside the mandate remains about 70 %. Many of them are allegations that Community law has not been correctly applied in a Member State. During 1999, we advised 314 complainants (259 in 1998) to address the National or regional ombudsman' s office or to petition the respective Parliament. Similar information was given to many other citizens who contacted the office in writing, by telephone or e-mail to ask for advice. As the Amsterdam Treaty is progressively implemented, especially the provisions concerning an area of Justice, freedom and security, more and more Community law will apply at all levels in the Member States and there will be even greater need for swift and effective judicial and extra-judicial remedies. For our part, we have accepted responsibility for informing the national and regional ombudsmen offices and the respective committees on petitions about Community law. We have also established a network to provide them with support and advice, making maximum use of the internet for this purpose. The meeting of the national ombudsmen and similar bodies in September in Paris and with the regional ombudsmen and committees on petitions in Florence in October showed that all these institutions and bodies are ready to further activate themselves in this field.

This means that a constructive cooperation in the true spirit of subsidiarity and equality might be the best way forward to assist the European citizens so that they can obtain what they have a right to under Community law wherever and on whatever level the dispute occurs throughout the European Union.

Thus Community law would be a living reality for all European citizens.

Jacob Söderman

Strasbourg, 31 December 1999

2. COMPLAINTS TO THE OMBUDSMAN

The most important task of the European Ombudsman is to deal with maladministration in the activities of Community institutions and bodies, with the exception of the Court of Justice and Court of First Instance acting in their judicial role. Possible instances of maladministration come to the attention of the Ombudsman mainly through complaints made by European citizens. The Ombudsman also has the possibility to conduct inquiries on his own initiative.

Any European citizen, or any non-citizen living in a Member State, can make a complaint to the Ombudsman. Businesses, associations or other bodies with a registered office in the Union may also complain. Complaints may be made to the Ombudsman either directly, or through a Member of the European Parliament.

Complaints to the Ombudsman are dealt with in a public way unless the complainant requests confidentiality. It is important that the Ombudsman should act in as open and transparent a way as possible, both so that European citizens can follow and understand his work and to set a good example to others.

During 1999, the Ombudsman dealt with 1860 cases. 1577 of these were new complaints received in 1999. 1458 of these were sent directly by individual citizens, 90 came from associations and 23 from companies. 11 complaints were transmitted by Members of the European Parliament. 278 cases were brought forward from the year 1998. The Ombudsman also began 5 own-initiative inquiries.

As first noted in the Ombudsman's Annual report for 1995, there is an agreement between the Committee and the Ombudsman concerning the mutual transfer of complaints and petitions in appropriate cases. During 1999, 3 petitions were transferred to the Ombudsman, with the consent of the petitioner, to be dealt with as complaints. 71 complaints were transferred, with the consent of the complainant, to the European Parliament to be dealt with as petitions. Additionally, there were 142 cases in which the Ombudsman advised a complainant to petition the European Parliament. (See Annex A, Statistics, p. 168)

2.1. THE LEGAL BASIS OF THE OMBUDSMAN'S WORK

The Ombudsman's work is carried out in accordance with Article 195 of the Treaty establishing the European Community, the Statute of the Ombudsman(1) and the implementing provisions adopted by the Ombudsman under Article 14 of the Statute. The text of the implementing provisions, in all official languages, is published on the Ombudsman's Website (http://www.euro-ombudsman.eu.int). The text is also available from the Ombudsman's office.

The implementing provisions deal with the internal operation of the Ombudsman's office. However, in order that they should form a document that will be understandable by and useful to citizens, they also include certain material relating to other institutions and bodies that is already contained in the Statute of the Ombudsman.

On 30 November 1999, the Ombudsman amended the implementing provisions so as to make clear that, following the Treaty of Amsterdam, complaints may also be submitted in the Irish language. The amendment takes effect from 1 January 2000. The brochure "The European Ombudsman - could he help you?" and the complaint form have been added to the Ombudsman's website in Irish.

In June 1999, the European Parliament amended and re-numbered, as Rules 177-179, the provisions of its Rules of Procedure concerning the Parliament's relationship with the European Ombudsman. The amendments make clear that the Ombudsman's Annual and Special reports are dealt with by the same responsible Committee (in practice the Committee on Petitions).

2.2. THE MANDATE OF THE EUROPEAN OMBUDSMAN

All complaints sent to the Ombudsman are registered and acknowledged. The letter of acknowledgement informs the complainant of the procedure for considering his or her complaint and includes the name and telephone number of the legal officer who is dealing with it. The next step is to examine whether the complaint is within the mandate of the Ombudsman.

The mandate of the Ombudsman, established by Article 195 of the EC Treaty, empowers him 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 Community institutions and bodies with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. A complaint is therefore outside the mandate if:

1. the complainant is not a person entitled to make a complaint

2. the complaint is not against a Community institution or body

3. it is against the Court of Justice or the Court of First Instance acting in their judicial role or

4. it does not concern a possible instance of maladministration.

2.2.1.

"MALADMINISTRATION"

In response to a call from the European Parliament for a clear definition of maladministration, the Ombudsman offered the following definition in the Annual Report for 1997:

Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it.

In 1998 the European Parliament adopted a Resolution welcoming this definition.

During 1999, there was an exchange of correspondence between the Ombudsman and the Commission which made clear that the Commission has also agreed to this definition.

Error of legal interpretation is a form of maladministration

In October 1998, the Irish Ombudsman's office sent a query to the European Ombudsman concerning the interpretation of Article 9 (2) of Commission Regulation 3887/92. The query arose as a result of a number of complaints to the Irish Ombudsman against the Irish Department of Agriculture and Food which, acting on Commission advice, had rejected or restricted payments to certain applicants for grants under Special Beef and Extensification Premium Schemes.

In February 1999 the Commission confirmed its interpretation of the Regulation. The Irish Ombudsman's office then claimed that the Commission's interpretation was unduly restrictive and unfair to the applicants concerned. In April 1999, after careful consideration, the European Ombudsman decided to open an own-initiative inquiry into the matter and informed the Commission accordingly.

In June 1999, the Commission agreed to re-examine its stance on the interpretation of the provision in question. However, it also stated:

"The Commission is of the opinion that the legal interpretation of an article of a Regulation is not a matter of maladministration. According to art. 220 (formerly art. 164) of the Treaty, this question could eventually be decided by the Court of Justice."

The European Ombudsman's reply to the Commission on this point included the following points:

The Ombudsman is always mindful of the fact that the highest authority on the meaning and interpretation of Community law is the Court of Justice. Furthermore, in accordance with Article 195 of the EC Treaty the Ombudsman cannot conduct inquiries where the alleged facts are or have been the subject of legal proceedings (emphasis added). In practice, however, neither the Irish Ombudsman nor the Irish citizen who complained to him has brought, or could easily bring, legal proceedings concerning this issue. I should also point out that the meaning of the term "maladministration" is of fundamental importance for the work of the Ombudsman. For this reason, I dealt with the matter in the very first Annual Report, for 1995, which stated:

Neither the Treaty nor the Statute defines the term "maladministration". Clearly, there is maladministration if a Community institution or body fails to act in accordance with the Treaties and with the Community acts that are binding upon it, or if it fails to observe the rules and principles of law established by the Court of Justice and Court of First Instance.

The Report also contained a non-exhaustive list of possible types of maladministration.

The 1995 Annual Report was considered by the responsible Committee of the European Parliament, which accepted the above explanation of maladministration, and a plenary debate took place on 20 June 1996 to which Commissioner Marín contributed. The explanation of the term maladministration in the 1995 Annual Report was also referred to with approval at the meeting of the European national ombudsmen held in September 1997.

In the discussion of the 1996 Annual Report by the Parliament, there was call for a more precise definition of maladministration and I undertook in the plenary debate to provide such a definition. I asked the national ombudsman and similar bodies to inform me of the meaning given to the term maladministration in their Member States. From the replies received, it appears that the fundamental notion can be defined as follows:

Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it.

This definition was included in the Annual Report for 1997, together with a commentary which emphasised that when the European Ombudsman investigates whether a Community institution or body has acted in accordance with the rules and principles which are binding upon it, "his first and most essential task must be to establish whether it has acted lawfully".

Following a plenary debate held on 14 July 1998, in which Commissioner Gradin welcomed the fact that the meaning of the term "maladministration" has now been clearly defined, the European Parliament adopted a resolution on 16 July 1998 welcoming the definition of maladministration and stating that the definition and the examples mentioned in the Annual Report for 1997 give a clear picture as to what lies within the remit of the European Ombudsman.(2) The definition was repeated in the 1998 Annual Report, which was debated in the European Parliament on 15 April 1999 in the presence of Commissioner Monti.

I am therefore surprised, that the Commission should now wish to re-open a matter which has already been dealt with through a procedure in which it has had full opportunity to make its views known.

If the Commission considers that the interests of European citizens would be better served by making the Ombudsman's mandate narrower, it has the possibility to propose an amendment to the Treaty so as to exclude cases in which the complainant has a possible remedy before a court or tribunal. This restriction would be highly unusual, as is made clear by the Council of Europe's definition of an ombudsman's role, which includes review of the lawfulness of administrative acts(3). Such a restriction does exist, however, in the law governing the Parliamentary Commissioner in the United Kingdom. Unless and until the Treaty is amended to impose a similar restriction on the European Ombudsman, however, he should continue to fulfil the present Treaty mandate, which allows inquiries unless the alleged facts "are or have been the subject of legal proceedings".

The office of the European Ombudsman was set up in order to enhance relations between the Community institutions and bodies and European citizens. In cases where the institution explains that it has acted correctly in accordance with the rules and principles that are binding upon it, the citizen is sometimes satisfied with the explanation, or at least has a better understanding of the institution's actions.

Furthermore, in carrying out his inquiries, the Ombudsman is always aware not only that the highest authority on the meaning and interpretation of Community law is the Court of Justice but also of the high degree of expertise of Commission officials in interpreting and applying Community law in different subject areas. It is therefore likely that in most cases, the Ombudsman will find no reason, at the end of his inquiry, to question the Commission's considered interpretation of a legal provision.

The European Ombudsman asked the Commission to inform him by 31 July 1999 whether it accepts the definition of maladministration, included in the Ombudsman's Annual Report for 1997 and, if not, to inform him of the reasons.

On 15 July 1999 the Secretary General of the Commission replied, stating that Commissioner Gradin had agreed to the above-mentioned definition of maladministration on behalf of the Commission on 14 July 1998 in the European Parliament. The Secretary General also confirmed that the Commission's review of its interpretation of the provision in question was under way and that the Commission would inform the Ombudsman in a prompt manner of its outcome.

Q5/98/IJH - OI/3/99/IJH

2.2.2.

THE CODE OF GOOD ADMINISTRATIVE BEHAVIOUR

In November 1998, the Ombudsman began an own initiative inquiry into the existence and the public accessibility, for the different Community institutions and bodies, of a Code of Good Administrative Behaviour for officials in their relations with the public. The own-initiative inquiry asked nineteen Community institutions and bodies whether they had already adopted, or would agree to adopt, such a Code for their officials in their relations with the public.

On 28 July 1999, the Ombudsman proposed a Code of Good Administrative Behaviour in the form of draft recommendations to the Commission, the European Parliament and the Council. Similar draft recommendations were made to the other institutions and bodies in September 1999. The Ombudsman's Code is available in all languages on the website (http://www.euro-ombudsman.eu.int).

The Ombudsman expects to make a Special Report on the matter to the European Parliament early in 2000.

2.3. ADMISSIBILITY OF COMPLAINTS

A complaint that is within the mandate of the Ombudsman must meet further criteria of admissibility before the Ombudsman can open an inquiry. The criteria as set out by the Statute of the Ombudsman are that:

1. the author and the object of the complaint must be identified (Art. 2.3 of the Statute);

2. the Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling (Art. 1.3);

3. the complaint must be made within two years of the date on which the facts on which it is based came to the attention of the complainant (Art. 2.4);

4. The complaint must have been preceded by appropriate administrative approaches to the institution or body concerned (Art. 2.4);

5. in the case of complaints concerning work relationships between the institutions and bodies and their officials and servants, the possibilities for submission of internal administrative requests and complaints must have been exhausted before lodging the complaint (Art. 2.8).

Examples of inadmissibility because of Court proceedings

In July 1998 the Organisation Énergie pour l'Arménie lodged a complainant with the European Ombudsman. It claimed that the European Commission refused to pay an invoice for work carried out in the framework of a contract signed under the TACIS programme. The complaint was sent to the Commission for an opinion, and the complainant was given the opportunity to comment on it. Some further inquiries were made.

In accordance with Article 195 of the Treaty establishing the European Community, the European Ombudsman may not conduct inquiries where the alleged facts are or have been the subject of legal proceedings.

During the investigations on the complaint, the complainant informed the European Ombudsman that the facts alleged in his complaint to the Ombudsman were the subject of legal proceedings before Belgian Courts.

Article 2 (7) of the Statute of the Ombudsman provides that, when the Ombudsman has to terminate his consideration of a complaint because of legal proceedings, the outcome of any inquiries he has carried out up to that point shall be filed without any further action. The Ombudsman therefore decided to close the case.

Case 739/98/ADB

In July 1999, Mrs P. made a complaint to the European Ombudsman concerning the refusal of the Commission of the European Communities to admit her to the written examination of Competition COM/A/12/98.

The complaint was forwarded to the Commission for its opinion. In November 1999, the Commission informed the Ombudsman that the complainant had initiated legal proceedings before the Court of First Instance concerning the facts which had been put forward in the complaint. Because the complainant had brought an action before the Court of First Instance, the Ombudsman, after having heard the complainant on this issue, terminated his consideration of the complaint in December 1999 in accordance with Article 195 of the EC Treaty.

In accordance with Article 2 (7) of the Statute of the Ombudsman, the outcome of the Ombudsman's inquiries carried out up to that point was filed without further action.

Case 867/99/GG

2.4. GROUNDS FOR INQUIRIES

The Ombudsman can deal with complaints that are within his mandate and which meet the criteria of admissibility. Article 195 of the EC Treaty provides for him to "conduct inquiries for which he finds grounds". In some cases, there may not be sufficient grounds for the Ombudsman to begin an inquiry, even though the complaint is technically admissible. Where a complaint has already been dealt with as a petition by the Committee on Petitions of the European Parliament the Ombudsman normally considers that there are no grounds for him to open an inquiry, unless new evidence is presented.

2.5. ANALYSIS OF THE COMPLAINTS

Of the 5270 complaints registered from the beginning of the activity of the Ombudsman, 16 % originated from France, 14 % from Germany, 14 % from Spain, 9 % from the UK, and 12 % from Italy. A full analysis of the geographical origin of complaints is provided in Annex A, Statistics.

During 1999, the process of examining complaints to see if they are within the mandate, meet the criteria of admissibility and provide grounds to open an inquiry was completed in 93 % of the cases. 27 % of the complaints examined appeared to be within the mandate of the Ombudsman. Of these, 243 met the criteria of admissibility, but 42 did not appear to provide grounds for an inquiry. Inquiries were therefore begun in 201 cases.

Most of the complaints that led to an inquiry were against the European Commission (77 %). As the Commission is the main Community organ that makes decisions having a direct impact on citizens, it is normal that it should be the principal object of citizens' complaints. There were 24 complaints against the European Parliament and 7 complaints against the Council of the European Union.

The main types of maladministration alleged were lack of transparency (66 cases), discrimination (31 cases), unsatisfactory procedures or failure to respect rights of defence (33 cases), unfairness or abuse of power (32 cases), avoidable delay (45 cases) negligence (29 cases), failure to ensure fulfilment of obligations, that is failure by the European Commission to carry out its role as "Guardian of the Treaties" vis-à-vis the Member States (9 cases) and legal error (29 cases).

2.6. ADVICE TO CONTACT OTHER AGENCIES AND TRANSFERS

If a complaint is outside the mandate or inadmissible, the Ombudsman always tries to give advice to the complainant as to another agency which could deal with the complaint. If possible the Ombudsman transfers a complaint directly to another competent agency with the consent of the complainant, provided that there appear to be grounds for the complaint.

During 1999, advice was given in 708 cases, most of which involved issues of Community law. In 314 cases the complainant was advised to take the complaint to a national or regional Ombudsmen or similar body. In addition, with the consent of the complainant 8 complaints were transferred directly to a national Ombudsman. 142 complainants were advised to petition the European Parliament and, additionally, 71 complaints were transferred to the European Parliament, with the consent of the complainant, to be dealt with as petitions. In 149 cases the advice was to contact the European Commission. This figure includes some cases in which a complaint against the Commission was declared inadmissible because appropriate administrative approaches had not been made to the Commission. In 101 cases the complainant was advised to contact other agencies.

2.7. THE OMBUDSMAN'S POWERS OF INVESTIGATION

In the Annual Report for 1998 the Ombudsman proposed that his powers of investigation should be clarified, both as regards the inspection of documents and the hearing of witnesses. The European Parliament adopted a Resolution which urged the Committee on Institutional Affairs to consider amending Article 3 (2) of the Statute of the Ombudsman, as proposed in the report drawn up by the Committee on Petitions(4).

In order to advance this process, the Ombudsman drafted the following proposal for revision of the text of Article 3 (2) and forwarded it to the President of the European Parliament in December 1999:

The Community institutions and bodies shall be obliged to supply the Ombudsman with any information that he has requested of them and to allow him to inspect and take copies of any document or the contents of any data medium.

They shall give access to documents originating in a Member State and classed as secret by law or regulation only where that Member State has given its prior agreement.

They shall give access to other documents originating in a Member State after having informed the Member State concerned.

The members and staff of Community institutions and bodies shall testify at the request of the Ombudsman. They shall give complete and truthful information.

The Ombudsman and his staff shall not divulge any confidential information or documents obtained during the course of inquiries.

The above draft was partly inspired by the Regulation concerning the powers of investigation of the European Anti-fraud Office (OLAF) which foresees that it shall have the right of immediate and unannounced access to any information and the right to copy any document held by the institutions and bodies(5).

2.7.1. THE HEARING OF WITNESSES

According to Article 3.2 of the Statute of the Ombudsman:

"Officials and other servants of the 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".

During 1999, the Ombudsman invoked this provision for the first time in two cases involving the Commission. One of the cases (1140/97/IJH) was closed in 1999 and is reported below (p. 83). The inquiry into the other case (995/98/OV) continued into 2000.

On the basis of the experience of conducting hearings, the Ombudsman wrote to the Secretary General of the Commission on 7 July 1999 setting out a general procedure to apply in future cases:

1. The date, time and place for the taking of oral evidence are agreed between the Ombudsman's services and the Secretariat General of the Commission, which informs the witness(es). Oral evidence is taken on the Ombudsman's premises, normally in Brussels.

2. Each witness is heard separately and is not accompanied.

3. The language or languages of the proceedings is agreed between the Ombudsman's services and the Secretariat General of the Commission. If a witness so requests in advance, the proceedings are conducted in the native language of the witness.

4. The questions and answers are recorded and transcribed by the Ombudsman's services.

5. The transcript is sent to the witness for signature. The witness may propose linguistic corrections to the answers. If the witness wishes to correct or complete an answer, the revised answer and the reasons for it are set out in a separate document, which is annexed to the transcript.

6. The signed transcript, including any annex, forms part of the Ombudsman's file on the case.

It was subsequently clarified that point 6 also implies that the complainant receives a copy of the signed transcript and has the opportunity to make observations.

2.7.2. INSPECTION OF DOCUMENTS

During 1999, the Ombudsman's powers to inspect files and documents relating to an inquiry were invoked on several occasions.

In correspondence between the Commission and the Ombudsman it was made clear that the right to inspect includes the possibility to read the documents, to make notes, and to take photocopies.

The Ombudsman's instructions to his staff concerning inspection of documents include the following points:

The legal officer is not to sign any form of undertaking or any acknowledgement other than a simple list of the documents inspected or copied. If the services of the institution concerned make such a proposal, the legal officer transmits a copy of it to the Ombudsman.

If the services of the institution concerned seek to prevent or impose unreasonable conditions on the inspection of any documents the legal officer is to inform them that this is considered as a refusal.

If inspection of any document is refused the legal officer asks the services of the institution or body concerned to state the duly substantiated ground of secrecy on which the refusal is based.

The first point was added following a case in which the Commission services proposed that the Ombudsman's staff should sign an undertaking to indemnify the Commission in respect of any damage caused to a third party by release of information contained in the document.

2.8. DECISIONS FOLLOWING AN INQUIRY BY THE OMBUDSMAN

When the Ombudsman decides to start an inquiry into a complaint, the first step is to send the complaint and any annexes to the Community institution or body concerned for an opinion. When the opinion is received, it is sent to the complainant for observations.

In some cases, the institution or body itself takes steps to settle the case to the satisfaction of the complainant. If the opinion and observations show this to be so, the case is then closed as "settled by the institution". In some other cases, the complainant decides to drop the complaint and the file is closed for this reason.

If the complaint is neither settled by the institution nor dropped by the complainant, the Ombudsman continues his inquiries. If the inquiries reveal no instance of maladministration, the complainant and the institution or body are informed accordingly and the case is closed.

If the Ombudsman's inquiries reveal an instance of maladministration, if possible he seeks a friendly solution to eliminate it and satisfy the complainant.

If a friendly solution is not possible, or if the search for a friendly solution is unsuccessful, the Ombudsman either closes the file with a critical remark to the institution or body concerned, or makes a formal finding of maladministration with draft recommendations.

A critical remark is considered appropriate for cases where the instance of maladministration appears to have no general implications and no follow-up action by the Ombudsman seems necessary.

In cases where follow-up action by the Ombudsman does appear necessary (that is, more serious cases of maladministration, or cases that have general implications), the Ombudsman makes a decision with draft recommendations to the institution or body concerned. In accordance with Article 3 (6) of the Statute of the Ombudsman, the institution or body must send a detailed opinion within three months. The detailed opinion could consist of acceptance of the Ombudsman's decision and a description of the measures taken to implement the recommendations.

If a Community institution or body fails to respond satisfactorily to a draft recommendation, Article 3 (7) provides for the Ombudsman to send a report to the European Parliament and to the institution or body concerned. The report may contain recommendations.

In 1999 the Ombudsman began 206 inquiries, 201 in relation to complaints and 5 own-initiatives. (For further details, see Appendix A, Statistics p. 168)

Sixty two cases were settled by the institution or body itself. Of this number 39 were cases in which the Ombudsman's intervention succeeded in obtaining a reply to unanswered correspondence (see the 1998 Annual Report section 2.9 for further details of the procedure used in such cases). Five cases were dropped by the complainant. In 107 cases, the Ombudsman's inquiries revealed no instance of maladministration.

A critical remark was addressed to the institution or body concerned in 27 cases. A friendly solution was reached in 1 case. Ten draft recommendations to the institutions and bodies concerned were made in 1999. Two draft recommendations were accepted by the institutions in 1999, one being a draft recommendation made in 1998 (cases 1055/96/IJH and 633/97/(PD)IJH, see pages 240 and 242). In the case of 8 other draft recommendations made in 1999, the deadline for a detailed opinion from the institution concerned did not expire before the end of the year.

In one case, a draft recommendation was followed by a special report to the European Parliament. The case concerned was the own-initiative inquiry (1004/97/(PD)GG) into the secrecy which forms part of the recruitment procedures of the Commission.

The report, which is published in the Official Journal(6) and on the Ombudsman's website in all languages includes the following recommendation:

In its future recruitment competitions, and at the latest from 1 July 2000 onwards, the Commission should give candidates access to their own marked examination scripts upon request.

On 7 December 1999, the President of the Commission informed the Ombudsman that:

"The Commission welcomes the recommendations you made in this report and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination papers, upon request, from 1 July 2000 onwards."

3. DECISIONS FOLLOWING AN INQUIRY

3.1. CASES WHERE NO MALADMINISTRATION WAS FOUND

3.1.1. THE EUROPEAN PARLIAMENT

TRANSPARENCY IN THE PROCEEDINGS OF A COMPETITION ORGANISED BY A POLITICAL GROUP OF THE EUROPEAN PARLIAMENT

Decision on complaint 1163/97/JMA against the European Parliament

The complaint

In December 1997, Mrs M. made a complaint to the Ombudsman concerning a number of irregularities in open competition A 1/97 (Spanish administrators) organised by the Socialist Group of the European Parliament. Her allegations referred to the composition of the competition's Selection Board, and the transparency of its proceedings.

The complainant participated in that open competition in 1997. According to her, even though she reached the last stage in the selection procedure, and was interviewed by the Selection Board, her name was not finally included in the competition's reserve list.

Mrs M. wrote to the secretariat of the Selection Board requesting to have access to her written tests. The Selection Board replied that since its work was confidential, as set out in the Staff Regulations and recognised by the case-law of the Court of Justice, it could not give access to her written test. The letter added that, although she had obtained high marks in the written tests (83 points out of 100), in view of the interviews carried out by the Selection Board, her name could not be included in the reserve list.

Following another request by the complainant, the Selection Board informed her in November 1997 that three candidates had been included in the reserve list for this competition, two of which had been selected to fill the available posts. The letter only referred to the names of these candidates. The reply did not mention the candidates' results, because of the confidential nature of the deliberations of the Selection Board. This decision was confirmed by the President of the political group responsible for the organisation of the competition.

The complainant therefore lodged a complaint with the European Ombudsman, putting forward the following claims:

1. Violation of a number of internal rules of the Socialist Group:

- Article 8.1.5: no representative of the Staff Committee was present during the oral tests; the Selection Board included more than two members of the same nationality/language of the competition (Spanish); the decision taken by the selection board had been signed by one of its members without voting rights.

- Article 8.1.6: the number of candidates included in the reserve list was less than three times the number of vacant post.

2. Failure to provide information and lack of transparency:

- According to the complainant, she did not receive appropriate explanations as regards the evaluation criteria followed by the Selection Board for the assessment of the tests. In relation to this aspect, the complainant indicated that it had taken the President of the Socialist Group a long time (2 months) to reply to her requests, and moreover that her letter to the member of the Selection Board representing the Staff Committee had remained unanswered.

- The complainant also alleged that the fact that some candidates included in the reserve list had had working relations with certain members of the Selection Board, raised doubts as to the impartiality of its decision.

The inquiry

The Parliament's opinion

The complainant was forwarded to the European Parliament. In its opinion, it referred to the comments which had been put forward by the Socialist Group.

- As for the absence of a Staff Committee representative in the Selection Board, the opinion pointed out that, in order to constitute the Selection Board, its President had only to verify whether the minimum number of members were present so as to form a quorum. Moreover, no candidate had raised any objection concerning this matter prior to the beginning of the tests.

- The Socialist Group explained that only two full members of the Selection Board had the same nationality: a representative of the Spanish delegation and the Group's secretary general. The latter was a member of the Selection Board on the basis of his institutional role in the Group. There was a second representative of the Spanish delegation who was however merely an observer, without the right to vote.

- Concerning the number of candidates included in the reserve list, the opinion pointed out that it only included the candidates who, in the opinion of the Selection Board, met the selection criteria.

- The opinion contested the allegation of partiality of the Selection Board based on the existence of working relations between some of its members and some candidates who were included in the reserve list. The Socialist Group explained that similar relations existed also in relation to other candidates who had not been chosen. Furthermore since the competition had been organised by the political group only a previous working relation with that group would have been relevant.

As regards the allegations of lack of information and transparency, the opinion indicated that, taking into account the need for confidentiality in the work of the Selection Board, the complainant had been given sufficient information. Accordingly, the Selection Board had no obligation to give any further information to the complainant.

The Socialist Group explained that the delay in the reply by the President of its group was due to her frequent travelling. As regards the lack of reply from the representative of the Staff Committee, it was noted that, in his capacity as a member of the Selection Board, he could not make statements on behalf of the Board in reply to the complainant's claim.

The complainant's observations

The complainant stressed the allegations already made in her complaint.

She referred to each one of the aspects regarding the violation of the internal rules of the Socialist Group, which she considered as the basis for her claim:

- Firstly, concerning the absence of a representative of the Staff committee, the complainant considered that the presence of a staff committee representative is a guarantee. His absence is therefore a violation of the procedure established both in the Staff Regulations as well as the internal rules of the Socialist Group. She also pointed out that she had not contested the Selection Board's composition before the beginning of the test because she presumed that their members acted in good faith.

- The complainant also rejected the Parliament's explanation for the presence of a third Spanish national in the Selection Board. Although the Parliament had indicated that this person only acted on a consultative role, the complainant considered that this role should had prevented him from signing the final decision by the Selection Board.

- The complainant restated her claims as regards the allegedly low number of candidates included in the reserve list.

As regards the lack of transparency, she stressed that the extensive interpretation given in the Parliament's opinion to the principle of confidentiality of the deliberations of the Selection Board led to a lack of transparency and information. In her view, the confidentiality of the Board's deliberations would not be affected by the release of the selection criteria used for her final marks, as she had requested. The complainant supported her point of view with extracts from a recent judgement of the Court of Justice in case 254/95 (European Parliament v. Innamorati)(7).

The complainant rejected the Socialist Group's explanation about the delay in replying to her requests due to the travelling of its President. She referred to the rules applied by the services of the European Ombudsman, which establish that the complainant should receive an answer from any EU institution in a reasonable delay.

Further inquiries

In February 1999, the complainant wrote again to the European Ombudsman. Following a conversation with the President of the Spanish Socialist Delegation, she believed a friendly solution was possible, whereby her name would be added to the reserve list of the competition. On 8 March 1999, the Ombudsman forwarded the complainant's proposal to the European Parliament.

After several requests for an extension of the deadline, the Ombudsman received the comments made by the Socialist Group of the European Parliament on 15 June 1999. In this letter the group indicated that it could not accept the suggestion made by the complainant. It pointed out that the reserve list had already been established on the basis of the candidates that were considered suitable for the post, and at that time the complainant was not among the names chosen. It added that any modification of the reserve list would be discriminatory towards the other non-selected candidates.

The decision

1. Scope of the European Ombudsman's powers

1.1. Since the case was primarily addressed against a political group of the European Parliament, the Ombudsman deemed it necessary, before considering the merits of the case, to make a few considerations regarding the scope of his powers.

1.2. The facts of the case related to the decisions taken by a Selection Board of a competition organised by a political group of the European Parliament for the selection of several temporary agents to be employed by that group.

1.3. As set out in Article 2 § 1 of his Statute, "the Ombudsman shall help to uncover maladministration in the activities of the Community institutions and bodies". Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it(8). There are limits to what may count as maladministration. Thus, complaints against decisions of a political rather than an administrative nature are to be regarded as inadmissible. That is the case of complaints against the political work of the European Parliament, or its organs(9), most notably the activities of its political groups.

1.4. However, the organisation of a recruitment procedure for the selection of temporary agents by the European Parliament's political groups cannot be entirely considered as a political activity. Pursuant to article 14 of the Decision of the European Parliament's Bureau of 25 June 1997(10), the political groups are empowered to select their own temporary agents, and in doing so they exercise by delegation the powers of the institution's authority empowered to conclude contracts of employment under the conditions of employment of other servants of the Communities.

From this perspective, the organisation of competitions for the selection of temporary agents by the Parliament's political groups constitutes an administrative activity subject to certain Community rules. To that extent, this type of situations fall within the jurisdiction of the Community courts, and hence both the Court of First Instance and the European Court of Justice have the power to review the conformity of these competitions with Community law.

1.5. The inquiry of the Ombudsman had thus been limited to assess whether, in this case, Community rules and principles had been duly respected.

2. Alleged irregularities based on the internal rules of the political group

2.1. The complainant claimed that a number of irregularities had taken place in the course of the competition. These irregularities referred to:

a. The composition of the Selection Board: absence of a representative of the Staff Committee during the oral tests; presence of more than two members of the same nationality/language of the competition in the Selection Board; the signature of the final act of the Selection Board by one of its non-voting members; and working relations between some members of the Selection Board and several candidates.

b. The limited number of candidates included in the reserve list.

The complainant stressed that all these irregularities were in breach of the Socialist group's internal regulations.

2.2. The Ombudsman noted that the allegedly non-respected regulations were addressed to the members of a European Parliament political group. In view of the political nature of their work, supervising the application of these rules was beyond the Ombudsman's remit.

2.3. Nevertheless, the alleged irregularities had taken place in the course of a recruitment procedure in which the political group was acting under the authority and on behalf of the European Parliament's authority empowered to conclude contracts of employment under the conditions of employment of other servants of the Communities appointing authority. From that point of view, the organisation of the competition constituted an administrative activity under Community law and subject to review by the Community courts.

In order therefore to assess the alleged irregularities, the Ombudsman sought to elucidate whether the Selection Board had failed to act in accordance with a Community rule or principle binding upon it.

2.4. Some of the complainant's claims referred to the incorrect composition of the Selection Board.

As established by the Community Courts, the composition of a Selection Board is to be considered improper if it cannot guarantee an objective assessment of the candidates' qualities(11). From the information submitted in the course of the inquiry, the Ombudsman could not conclude that in assessing the candidates' qualities the Selection Board of the competition had not been objective. The Ombudsman therefore found that there was no evidence of maladministration in relation to this aspect of the case.

2.5. As regards the candidates to be included in the reserve list of the competition, the complainant believed that the number of selected candidates should include three times the number of posts to be filled. In the Parliament's opinion, the Socialist Group indicated that the Selection Board included in the reserve list only those candidates who were considered suitable on the basis of the competition.

2.6. The Ombudsman noted that Article 5 § 5 of Annex III of the Staff Regulation states that,

"the Selection Board shall draw up the list of suitable candidates [...]; the list shall wherever possible contain at least twice as many names as the number of posts to be filled."

In view of the previous provisions, the Selection Board enjoys certain discretion as to the number of suitable candidates to be included in the reserve list. The Ombudsman considered therefore that there was no evidence of maladministration in relation to this aspect of the case.

3. Information on the criteria for the evaluation of the tests

3.1. The complainant stated that despite her many requests to the Selection Board's secretary, its member representing the Staff Committee and the President of the Group, no explanation had been given to her as to the criteria for the evaluation of the tests. In its opinion, the Parliament indicated that the complainant had been informed of her marks in the written and oral tests. No further information could be given to her on the grounds of the confidentiality of the Selection Board's deliberations.

In the present state of Community law there is no legal basis for considering that the Parliament is under an obligation to disclose detailed information on the criteria followed by the Selection Board for its evaluation of the tests. The Ombudsman therefore found that there was no evidence of maladministration in relation to this aspect of the case.

3.2. The Ombudsman, however, drew the Parliament's attention to the fact that, by communicating more detailed information on the criteria of evaluation to the candidates, the Parliament would considerably increase the transparency in the recruitment and could also alleviate the work of Selection Boards in dealing with requests and complaints from applicants.

Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, there appeared to have been no maladministration by the European Parliament. The Ombudsman therefore closed the case.

Further remarks

Most of the claims made by the complainant referred to allegations of potential violations of internal regulations of a political group. As the Ombudsman had stated before, ensuring a correct application of these rules was beyond his remit. Nevertheless, in carrying out a recruitment procedure for temporary agents, a political group acts on behalf of the Parliament's authority empowered to conclude contracts of employment under the conditions of employment of other servants of the Communities, and therefore, should abide by the relevant Community rules and principles of good administration. Moreover, since these types of procedures are often perceived by the citizens as official Community competitions, the institution itself should also play a monitoring role in order to ensure that those recruitment procedures are properly carried out, in due respect of the applicable legal rules and principles. By doing so the Parliament would contribute to enhancing the Union's relationship with its citizens.

In reply to these comments, the President of the European Parliament wrote to the Ombudsman on 11 January 2000. In her letter, Mrs Fontaine expressed that political groups should respect principles of good administration in their recruitment procedures, and stressed that the Parliament's administration monitors compliance with these principles.

APPLICATION FOR A "ROBERT SCHUMAN" SCHOLARSHIP: ALLEGED FAILURE TO REPLY BY THE PARLIAMENT

Decision on complaint 287/98/IP against the European Parliament

The complaint

In March 1998 Mr F. made a complaint to the European Ombudsman concerning the alleged failure of the European Parliament to reply to his application for a "Robert Schuman" scholarship.

In September 1996, the complainant had applied for a "Robert Schuman" scholarship from the European Parliament.

The Parliament sent him an acknowledgement of receipt on 16 September 1996, in which it informed the complainant that a decision on his application would be taken during the selection procedure of November 1996.

In his letter to the Ombudsman, the complainant claims that he never received the aforementioned Parliament's decision.

The inquiry

The Parliament's opinion

The complaint was forwarded to the European Parliament. Its opinion was in summary the following:

The Parliament stated that in September 1996, its services of the Directorate General of studies sent the complainant an acknowledgement of receipt of his application. In the same letter, the institution gave the complainant some information about the selection procedure. In particular, he was informed that a decision on his application would be taken during the selection procedure of November 1996.

The institution pointed out that a restricted number of applications that had not been selected in November because of the small number of scholarships, would be re-examined during the following three selections.

Furthermore, the Parliament enclosed a copy of a letter that the complainant sent to the Parliament in September 1996, in which he disagreed with the modality of the selection procedure and decided to withdraw his application.

The Parliament stressed that in view of the above circumstances, it considered that no more exchange of correspondence with the complainant appeared necessary. In spite of this, the institution replied to a further letter of the complainant dated 26 February 1998, explaining that following the withdrawal, his application had not been examined.

The complainant's observations

The Ombudsman forwarded the European Parliament's opinion to the complainant with an invitation to make observations. No reply to this request was received.

The decision

Alleged failure of reply by the European Parliament

1. Principles of good administrative behaviour require that public administrations properly reply to the queries of citizens.

2. In this case, the complainant applied for a "Robert Schuman" scholarship from the European Parliament. He claimed that the institution failed to communicate the decision of the outcome of the selection procedure to him.

3. The Parliament pointed out that its services had duly sent the complainant an acknowledgement of receipt of his application. Then, by letter of 26 September 1996, the complainant asked the institution to withdraw his application. The Parliament had therefore considered any further reply to the complainant to be unnecessary.

4. The Ombudsman considered that in its opinion, the Parliament had reasonably explained its failure to inform the complainant of the outcome of the selection procedure.

5. Furthermore, the Ombudsman noted that the Parliament also had replied to a letter of the complainant dated 26 February 1998, explaining the reason why his application had not been examined.

Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, there appeared to have been no maladministration by the European Parliament. The Ombudsman therefore decided to close the case.

TIME LIMIT FOR SUBMITTING MEDICAL CERTIFICATE

Decision on complaint 689/98/BB against the European Parliament

The complaint

In June 1998 Mr C., MEP, made a complaint to the European Ombudsman concerning a request by the College of Quaestors of the European Parliament to reimburse 50 % of his general expenses for the reference period September 1996-August 1997.

During the parliamentary year 1996-1997 the complainant suffered from serious health problems and, as a result, was unable to be present at the required 50 % of the Parliamentary Sessions. In fact, he was two days short of the 50 % minimum. The complainant was notified of this fact and asked to refund 50 % of the general expenditure allowance for the period in question.

According to the complainant the above mentioned two days corresponded to 14, 17 and 18 July 1996 during which period he was hospitalised. He sent the medical certificates after the summer holidays, believing that the Parliament was closed in August. These certificates were refused on grounds that they were submitted after the one month's time limit. The complainant indicated that he had acted in bona fide and that he wished to keep the other half of the general allowances.

The inquiry

The Parliament's opinion

In its opinion the Parliament made in summary the following points:

Article 28 (1) of the Rules on Members' expenses and allowances provides as follows:

"Any Member who, in a parliamentary year (1 September to 31 August) is absent on at least fifty per cent of those days fixed by the Bureau for plenary sessions of the Parliament, shall reimburse to the Parliament fifty per cent of the general expenditure allowance, under Article 13, relating to that period."

Article 28 (2) provides:

"Any period of absence referred to in paragraph 1 may be excused by the President on the grounds of ill-health or serious family circumstances, or the presence of the Member concerned elsewhere on mission on behalf of the Parliament. Supporting documents shall be submitted to the College of Quaestors within a maximum of one month from the date on which the absence began."

The requirement that supporting documents must be submitted within a maximum of one month from the date on which the absence began was incorporated into the body of Rules by the Bureau's decision of 15 January 1996. The Bureau's minutes are circulated to all Members after adoption in accordance with Rule 28 (1) of the Rules of Procedure.

In the case of the complainant, he was two days short of the 50 % minimum. He was notified of this fact by letter dated 16 September 1997 and asked to refund 50 % of the general expenditure allowance for the period in question. On 26 September 1997, the complainant wrote to the Quaestor responsible for financial matters enclosing a medical certificate dated 23 September 1997 relating to medical tests on 14, 17 and 18 July 1997. In order to be accepted as valid, the medical certificate should have been submitted within one month of the date on which the absence began, i.e. by 14 August 1997.

The matter was discussed at the Quaestors' meeting of 22 October 1997. The College informed the complainant that the one month's time limit was clearly laid down in the Rules on Members' expenses and allowances and confirmed the request for repayment of 50 % of the general expenditure allowance. This decision was notified by letter of 5 December 1997.

By letter of 17 December 1997 the complainant asked the President of the European Parliament to consider his request to be allowed to retain the whole of the general expenditure allowance, pointing out that this failure to respect the one month's time limit had been due to his belief that Parliament's administrative offices were considered closed during August.

The request was referred by the President to the College of Quaestors and considered at its meeting of 14 January 1998. The College replied by letter of 11 February 1998 that Parliament's administrative services continued to operate during August, where necessary on a "permanence" basis and that in any event it would have been open to him to submit his medical certificates in good time by fax or by registered letter. The College thus confirmed its earlier decision.

On 24 March 1998, the complainant wrote again to the Quaestor responsible for financial matters. This letter was considered at the College's meeting of 1 April 1998, but the earlier decision was confirmed.

According to the Parliament it has been consistent practice of the present College and previous Colleges of Quaestors to apply strictly the terms of Article 28 of the Rules on Members' expenses and allowances and, in particular, the requirement that medical certificates must be submitted within one month of the beginning of the period of absence in the case of illness.

The position adopted by the College is moreover strictly in accordance with previous cases involving the late submission of medical certificates by other Members.

The complainant's observations

In his observations the complainant maintained his complaint.

Further inquiries

On 30 April 1999, the Ombudsman sent a letter to the President of the Parliament making further inquiries about the complainant's allegation that he was in bona fide as regards the working hours of the Parliament's services during the summer. On 21 June 1999, the College of Quaestors replied stating that the complainant had submitted the medical certificate only after receiving the letter from the responsible Quaestor. Furthermore, the complainant could not claim ignorance as regards the working hours of Parliament's services during summer and so maintain that he acted in good faith.

On 19 July 1999, the complainant wrote to the Ombudsman indicating his wish to maintain his complaint.

The decision

Claimed reimbursement of 50 % of the general expenditure allowance for 1996/1997

1. The complainant claimed that he failed to observe the one month's time limit for the submission of medical certificates on grounds that he in bona fide believed that the Parliament's administrative services were closed during the month of August.

2. According to the Parliament, the complainant was notified by letter of 16 September 1997 of the fact that he was two days short of the 50 % minimum required attendance. He was therefore asked to refund 50 % of the general expenditure allowance for the period in question. On 26 September 1997, the complainant wrote to the Quaestor responsible for financial matters enclosing a medical certificate dated 23 September 1997 relating to medical test on 14, 17 and 18 July 1997. In order to be accepted as valid the medical certificate should have been submitted within one month of the date on which the absence began, i.e. 14 August 1997.

3. Based on the Ombudsman's inquiries, the Ombudsman noted that the Parliament had followed the consistent practice of the present College and previous Colleges of Quaestors to apply strictly the terms of Article 28 of the Rules on Members' expenses and allowances and, in particular, the requirement that medical certificates must be submitted within one month of the beginning of the period of absence in the case of illness. Moreover, the position adopted by the Parliament and the College of Quaestors was strictly in accordance with previous cases involving the late submission of medical certificates by other Members. It appeared that the complainant only reacted after he had received the letter of notification. Therefore there were no grounds for his claim that he did not send the medical certificate within one month's time limit because he believed that the Parliament's services were closed in August. Thus, there appeared to be no maladministration by the Parliament.

Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, there appeared to have been no maladministration by the European Parliament. The Ombudsman therefore decided to close the case.

3.1.2. THE EUROPEAN PARLIAMENT AND THE EUROPEAN COMMISSION

ACCESS TO REGISTERS OF INTERESTS

Decision on complaint 59/98/OV against the European Commission and the European Parliament

The complaint

In January 1998, Mr S. complained to the Ombudsman that the Commission refused to send him a copy of the Register of Interests of the Members of the Commission.

The complainant wrote on 5 December 1997 to the Secretary General of the Commission in order to get a copy of the Register of business and financial interests of the Commission Members. According to the complainant, the Commission did not provide him with a copy of the Register, but invited him to consult it on the spot in the Commission's premises in Brussels. However, he could not afford a trip to Brussels for that purpose. He therefore complained to the Ombudsman alleging that the Commission refused him access to the Register, which was not publicly available in the different Commission Representations of the Member States either.

On 3 and 10 March and 1 June 1998, the complainant wrote further letters in which he complained also about lack of access to the Register of Interests of MEPs. In order to clarify his complaint he was requested to fill in the standard complaint form. It appeared however from this complaint form that the complainant had made no prior administrative approaches to the European Parliament. Therefore the office of the Ombudsman advised him to write to the College of Quaestors. On 17 December 1998, the Ombudsman received from the office of MEP and Quaestor Richard Balfe a file on the dealing of this complaint by the College of Quaestors.

The inquiry

The Commission's opinion

The complaint was forwarded to the Commission. In its opinion, the Commission informed the Ombudsman that it decided on 24 March 1998 to send the requested documents to the complainant. In its observations, the Commission enclosed a copy of the letter sent to the complainant.

The complainant's observations

The complainant sent the Ombudsman a copy of a letter he wrote on 23 April 1998 to the Secretary General of the Commission in which he expressed his dissatisfaction with the contents of the Register of Interests sent by the Commission. He alleged amongst other things that the Registers of Interests of some Commissioners were not dated, that other Registers of Interests were not updated, that some Registers of Interests were written in French and German without English translation. The letter also included various questions related to the responsibilities of the Commissioners as regards their Registers of Interests.

Together with those observations, the complainant also wrote to the Ombudsman as regards access to the Register of Interests of MEPs, given that the Register was not available in the London information office of the European Parliament. The complainant included correspondence on the subject between MEP Pauline Green, whom he had contacted, and the President of the Parliament. In his reply to Pauline Green dated 2 March 1998, the President observed that for the moment the Register of Interests was available for consultation in the three places of work of the Parliament. The current wording of Annex I to the Rules of Procedure is based on the second Nordmann Report of 30 May 1996 (A4-0177/96), adopted by the Parliament on 17 July 1996. The President added however that the question of public access to the Register of Interests of MEPs was under discussion both in the Rules Committee and in the College of Quaestors.

The decision

1. The access to the Registers of Interests of the Commission

1.1. The subject of the complaint concerned access to the Register of Interests of the Members of the Commission and had therefore to be considered under the Commission Decision of 8 February 1994 on public access to Commission documents(12). On 5 December 1997 the complainant wrote a short letter to the Secretary General of the Commission asking for a copy of this Register, but received no reply. According to Article 2.4 of the Decision, failure to reply to an application for access to a document within one month of application being made constitutes an intention to refuse access. However, further to the intervention of the Ombudsman, the Commission decided on 24 March 1998 to send the requested document to the complainant. Therefore, the Commission complied with the application for access to documents and no further remark by the Ombudsman seemed to be necessary.

1.2. As regards the various allegations raised in the complainant's observations, contained in the letter to the Secretary General of the Commission, the Ombudsman noted that they constituted new allegations which were not raised in the original complaint, and that therefore he could not deal with them in this procedure. The Ombudsman further noted that the complainant, in his application to the Commission for access to documents dated 5 December 1997, did not ask for any details as regards the Register of Interests, but only for a copy of it. Therefore, by sending him the requested documents, the Commission had duly answered his initial request and no instance of maladministration was therefore found.

2. The complaint against the European Parliament

2.1. As regards the complaint about the Register of Interests of MEPs, it appeared from the complaint form that the complainant had made no prior administrative approaches on the subject. Therefore the Ombudsman's office advised the complainant to write to the College of Quaestors of the Parliament which is the competent body to deal with this matter, given that the Quaestors are responsible for administrative and financial matters directly concerning Members (Article 25 of the Rules of Procedure).

2.2. On 17 December 1998, the Ombudsman received from MEP and Quaestor Richard Balfe a voluminous file on the handling of the complaint by the College of Quaestors. From this file it appeared that the College of Quaestors had replied in detail to the letters of the complainant, on 5 and 19 November and on 14 December 1998. The College provided him with a large documentation (about 100 pages) on the subject of access to the Register of Interests of MEPs. In particular, the College of Quaestors sent him a copy of the second Nordmann Report (A4-0177/96) and its annex, which is a survey of the rules on the declaration of financial interests in the national parliaments of the Member States. The College also sent a copy of the form for the declaration of the Interests of MEPs and of the accompanying explanatory communication of the President to the MEPs, as well as a copy of the minutes for the meeting of the College of Quaestors of 18 September 1996. The College further sent a copy of two reports in the field of corruption(13).

2.3. According to Article 3 of Annex I to the Rules of Procedure(14) of the Parliament, "The register shall be open to the public for inspection". In the present situation, this means that the Register is available for consultation in the three places of work of the Parliament. Until now, the Parliament has never taken a decision to make the Register available in its information offices in the Member States, or in the form of a copy further to requests from citizens. In his letter to the complainant, MEP and Quaestor Richard Balfe stated that in the meeting of the College of Quaestors of 18 September 1996, he had requested that the Register be available in the Member State in which the MEP is elected. Finally, in his letter to MEP Pauline Green dated 2 March 1998, the President of the Parliament stated that the matter of public access to the Register of Interests of MEPs is currently under discussion in the Rules Committee and in the College of Quaestors. Taking into account the actions taken by the Parliament's administration, no further remark by the Ombudsman on this issue seems to be necessary.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appeared to have been no maladministration by the European Commission or by the European Parliament. The Ombudsman therefore closed the case.

3.1.3. THE COUNCIL OF THE EUROPEAN UNION AND THE EUROPEAN COMMISSION

CENTRE FOR THE DEVELOPMENT OF INDUSTRY: RESPONSIBILITIES OF COMMISSION

Decision on complaint 41/97/(VK)OV against the Council of the European Union and the European Commission

The complaint

In December 1996, Mr N. made a complaint to the Ombudsman concerning the unilateral abrogation of his contract by the Centre for the Development of Industry (CDI), a joint ACP (African, Caribbean and Pacific countries)-EC institution set up in the framework of the Lomé Convention and funded by the European Development Fund.

The complainant was engaged as a senior consultant during the Lomé III-Convention (1985-1990) with a five year contract. However, on 30 June 1987 his contract was unilaterally abrogated by the Director of the CDI without notice and without financial compensation. On 5 January 1988 the complainant started an arbitration procedure with the CDI. On 5 April 1990 the arbitration tribunal rendered its decision by default of the CDI condemning the latter to pay about 6 million BF indemnity, as well as interests and the arbitration costs. The decision was made enforceable by order of the Court of First Instance of Brussels of 17 April 1990. The CDI appealed against this order asking for the annulment of the arbitration decision, invoking amongst other things its immunity from jurisdiction. By judgment of 13 March 1992 the Court of First Instance rejected the appeal, referring to the fact that the CDI, by accepting the arbitration procedure, had renounced its immunity from jurisdiction.

Given that the CDI refused to execute the judgment of the Brussels Court of First Instance which confirmed the arbitration decision, the complainant wrote in December 1996 to the Ombudsman alleging that the CDI had still not paid the indemnities, nor the arbitration costs. The complainant drew the attention to the fact that the CDI was set up in the framework of the Lomé Convention, of which the contracting parties are, on the one hand, the European Communities and, on the other, the ACP states, that the CDI is a joint ACP-EC institution funded by the European Development Fund, and that DG VIII of the Commission is the Directorate General responsible for matters related to the Lomé Convention.

The inquiry

The Council's and the Commission's opinions

The complaint was forwarded to the Council and the Commission in March 1997. In their observations, the Council and the Commission stated that, although set up by the Lomé Convention, the CDI is neither a Community institution nor a Community body falling under their responsibility. The Commission added that it had no file of the complaint and that it was not aware that it has ever been seized of the matter. Both institutions observed that the provisions currently applicable to the CDI are Articles 87-97 of the Fourth Lomé Convention, which are supplemented by several decisions of the ACP-EC Council of Ministers and the ACP-EC Committee of Ambassadors.

Under these provisions, the Council and the Commission send an observer to the Executive Board of the CDI, which is composed of six independent, highly qualified persons appointed on the basis of parity between the ACP and the Community and who have substantial experience in the private or public industrial or banking sectors or in industrial development planning and promotion. This means that the Council and the Commission are not represented on the CDI Executive Board. The law applicable to the CDI and its Governing Board derives from the Lomé Convention implemented by the ACP-EC decisions. More particularly it is the joint ACP-EC Committee on Industrial Cooperation which supervises the CDI (Article 92) and reports to the joint ACP-EC committee of Ambassadors (Article 87) which adopts the CDI's Statute, financial and staff regulations and its rules of procedure (Article 93).

For these reasons both the Council and the Commission concluded that they had no direct managerial responsibility for the CDI and that therefore the complaint fell outside their competences. However, even though the Commission's observer on the Executive Board of the CDI has no voting rights nor a right to put subjects on the agenda of the meetings of the Board, the Commission stated in its observations to the Ombudsman that it would inform the Director of the CDI of the request of the Ombudsman and recommend that it be discussed at the next meeting of the Board.

The complainant's observations

In his comments the complainant first observed that the Lomé Convention, under which the CDI is established, is the direct responsibility of the Commission, that the management of the CDI has always been appointed with the explicit consent of the Commission and that the budget of the CDI is a grant from the European Development Fund, and that therefore the competence of the European Ombudsman with regard to this complaint could not be questioned. The complainant further stated that his complaint should be directly submitted to the Chairman of the Governing Board of the CDI with a fixed deadline for a decision.

On 6 October 1997 the complainant sent to the Ombudsman a copy of a letter to the Chairman of the CDI Governing Board in which he asked for immediate action by the CDI to settle his complaint. In another letter of the same date the complainant informed the Ombudsman that the note from the European Commission never reached the Chairman of the CDI Governing Board. On 22 April 1998, the complainant asked the Ombudsman to send the complaint directly to the Chairman of the CDI Governing Board, given that the Commission had not transferred his complaint to the CDI. Further to this request the Ombudsman sent on 25 May 1998 the file of the complaint to the Chairman of the Board. On 2 October 1998 the Ombudsman sent a letter in order to be informed of the outcome of the complaint. No reply was received from the CDI. In a letter of 4 December 1998 the complainant sent to the Ombudsman a copy of the letter addressed to the Chairman of the CDI Governing Board in which he criticised the ongoing maladministration of the CDI which had still not given execution to the arbitration decision enforced by the judgment of the Brussels Court of First Instance.

The decision

1. The complaint against the CDI

Article 138e of the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration in the activities of Community institutions and bodies. Therefore, since the CDI is not a Community institution nor a Community body in the sense of Article 138e of the EC Treaty, the Ombudsman has no power to deal with the complaint insofar as it is directed against the CDI Governing Board. In his letter dated 27 November 1996, the Ombudsman already informed the complainant that he could not deal with the complaint lodged on 26 August 1996 against the CDI.

2. The complaint against the Council and the Commission

Insofar as the complaint was directed against the Council and the Commission, the Ombudsman notes that the Lomé Convention does not make them directly responsible for the decisions of the CDI Governing Board. Neither the Council nor the Commission have voting rights on the CDI Governing Board. Article 92.1 of the Fourth Lomé Convention provides that the Commission and the Council shall have an observer status at the proceedings of the Governing Board. Therefore, the fact that the CDI Governing Board did not execute the arbitration decision cannot be considered as an instance of maladministration by the Council or the Commission.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appeared to have been no maladministration by the Council or the Commission. The Ombudsman therefore closed the case.

Further remarks

As regards the Commission, the Ombudsman noted that the Lomé Convention as an instrument falls under its direct responsibility. More particularly, the Ombudsman noted that Directorate General VIII of the Commission is the Directorate responsible for Development and for cooperation with the ACP States under the Lomé Convention, that the budget of the Convention is funded by the European Development Fund, and that the Commission has a representative in the Committee of Ambassadors which is responsible for monitoring the implementation of the Convention. Therefore it appears that the European Commission exercises a major influence in the implementation of the Lomé Convention. As regards the CDI, the Ombudsman noted that it is a joint ACP-EC institution funded by the European Development Fund. On the basis of the above considerations, the Ombudsman made the following remarks to the Commission:

In a society like the European Union which is governed by the rule of law, judgements and orders of courts should be duly executed. When setting up bodies like the CDI in the framework of Conventions, the Commission should seek to guarantee that the bodies so established abide by the rule of law and by the principles of good administrative behaviour.

In the present situation it appeared that in DG VIII of the Commission there exists a unit responsible for relations with the CDI. The Commission promised in its observations to the Ombudsman that it would recommend that the complaint be discussed at the next meeting of the CDI Governing Board. It appeared however from the information provided by the complainant that this had not been the case.

Therefore the Ombudsman considered it appropriate for the Commission to take the necessary steps in order to draw the attention of the Committee on Industrial Cooperation, which supervises the operation of the CDI Governing Board, to the alleged non-compliance by the CDI with the arbitration decision as enforced by the order of the Brussels Court of First Instance of 17 April 1990. The Commission should also consider drawing the attention of the Director of the CDI to this matter.

3.1.4. THE EUROPEAN COMMISSION

ADEQUATE STATEMENT OF REASONS FOR DECISION

Decision on complaint 106/97/PD against the European Commission

The complaint

In February 1997, Mr B. lodged a complaint on behalf of an association, Friends of the Lake District, concerning a decision by the European Commission to close the file on a complaint that he had lodged with the Commission concerning the UK authorities. In substance, the complainant alleged that the Commission had failed to give adequate reasons for its finding that the UK authorities had not acted in breach of Directive 85/337/EEC.

The background to the complaint is in brief the following: In August 1995, the association lodged a complaint with the Commission against the UK authorities. The complaint concerned a planning permission application for a so-called Rock Characterisation Facility (RCF). The association considered that in dealing with this application, the UK authorities had acted in breach of Directive 85/337/EEC on Environmental Impact Assessment.

The association judged that the RCF project should be considered indissociable from a planned deep repository for the disposal of nuclear waste. Only by taking the two projects as one, could a correct environmental impact assessment be made. The association considered that previous administrative practice of the Commission supported this view.

Moreover, the association considered that the UK authorities had acted in breach of Article 5 of Directive 85/337/EEC by not requiring the applicant company to provide and make public information on possible alternatives to the RCF project.

After having investigated the matter, the Commission informed the association that Directive 85/337/EEC leaves considerable areas for discretion to the Member States in relation to environmental assessments. Information needs only be supplied if the Member State considers that the information is relevant to the specific characteristics of a particular project and the environmental features likely to be affected. On the basis of the information available to it, the Commission did not find that the United Kingdom had breached Directive 85/337/EEC, and had therefore decided to close the file.

Considering that reply from the Commission unsatisfactory, the association lodged the complaint with the Ombudsman. In the complaint, it was in substance put forward that the Commission had failed to give adequate reasoning why the RCF project was dissociable from a possible deep repository for the disposal of nuclear waste and why information on alternative sites was not considered necessary.

The inquiry

To avoid misunderstanding, it is important to recall that the EC Treaty empowers the European Ombudsman to inquire into possible instances of maladministration only in the activities of Community institutions and bodies. The Statute of the European Ombudsman specifically provides that no action by any other authority or person may be subject of a complaint to the Ombudsman.

The Ombudsman's inquiries into this complaint were therefore directed towards examining whether there had been maladministration in the activities of the European Commission.

The Commission's opinion

The complaint was forwarded to the Commission. In its opinion, the Commission in substance repeated the reasoning previously given to the complainants.

The complainants' observations

In its observations, the association maintained the complaint.

Further inquiries

After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman considered that the Commission could have replied more adequately to the relevant arguments put forward by the complainant. The Commission was therefore requested to clarify, firstly, why the Commission had considered the RCF project dissociable from the planned nuclear waste deposit project; secondly, on what basis the Commission had concluded that the UK had not acted contrary to Directive 85/337/EEC when refraining from requesting the applicant company to give information on project alternatives.

The Commission's second opinion

In its reply, the Commission repeated that there was no evidence that the United Kingdom had failed to fulfil the obligations of Directive 85/337/EEC. The failure to require publication of alternative project options was accordingly not an infringement on the part of the United Kingdom. As for the dissociability of the project, the building of a nuclear depository would have required a separate planning application; the RCF project could therefore be considered dissociable from any such plans for a nuclear depository.

The complainant's further observations

In its observations, the association maintained the complaint.

After careful consideration of the Commission's second opinion and the further observations from the complainant, the Ombudsman asked the Commission to elaborate further its opinion on why the RCF was a dissociable project and why information on alternative sites was not considered necessary.

The Commission's third opinion

In its third opinion, the Commission first provided further clarification of the issue of dissociability. As for the information on project alternatives, the Commission took the view that since the two projects were dissociable, the RCF project fell within Annex II of Directive 85/337/EEC. Thus, the matter was considered in relation to Article 4(2) of Directive 85/337/EEC, which states that projects listed in Annex II shall be made subject to an assessment where Member States consider that their characteristics so require. The RCF project being dissociable from a possible repository for the disposal of nuclear waste, the Commission considered that information on alternative sites was not needed.

The complainant's observations on the Commission's third opinion

In its observations on the Commission's third opinion, the association maintained in particular the grievance that the Commission had failed to explain itself adequately on the question of alternative sites.

The decision

Failure to give adequate reasons

1. Principles of good administration require the administration to give adequate reasons for the decisions it takes on submissions that citizens have made to it. In this case, it was apparent that the Commission initially failed to give adequate reasons on the complainant's two concerns, the dissociability of the RCF project and the need for information on alternative sites.

2. However, in the course of the inquiry, the Commission stated the reasons why it considered the RCF project to be dissociable and why it considered that information on alternative sites was not needed. It appeared that the Commission in essence considered that the RCF project was a dissociable project as it could stand alone from a possible repository for nuclear waste. As the project could stand alone, the Commission considered that information on alternative sites was not needed. This reasoning did not appear unreasonable.

The Ombudsman therefore concluded that the Commission has rectified its original failure to provide an adequate statement of reasons.

Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appeared to be no maladministration by the Commission. The Ombudsman therefore closed the case.

HANDLING OF A COMPLAINT AGAINST THE UK AUTHORITIES

Decision on complaint 298/97/PD against the European Commission

The complaint

In April 1997, Mr C. MEP complained to the Ombudsman on behalf of the association Save Our Shoreline Southport (SOS). The complaint alleged failure of the Commission to enforce Community environmental legislation in the UK, as well as procedural errors in the handling of complaints from SOS.

The background to the complaint was in brief the following: On 10 December 1995, SOS lodged a complaint with the Commission, claiming that the UK authorities had infringed Community law by building a concrete sea defence wall at Southport. The association considered that the local authority which gave the planning permissions in 1993 and 1995 did not respect Community environmental legislation. The association had contacted the UK central government authorities who chose not to review or overturn the local authority's decision to grant planning permissions.

In the complaint to the Commission, SOS drew attention to the protected status of the area in which the concrete sea wall was to be constructed, a status which is provided by Directive 92/43/EEC on habitats and Directive 79/409/EEC on wild birds. The association considered that the concrete sea wall would cause direct damage to fauna and flora, as well as indirect damage by facilitating a heavy increase in traffic. The association therefore asked the Commission to assess whether the local authority had acted in breach of its obligations under the above Directives.

Art 6 of Directive 92/43/EEC provides in respect of protected areas:

"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, ... , shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authority shall agree to the plan or projet only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the public. (Underlining added; the same provision applies in respect of Directive 79/409/EEC, see Article 7 of Directive 92/43/EEC.)"

The association considered that the sea wall would have a significant effect on the area. In contrast, the local authority had considered that the sea wall was not "likely to have a significant effect" and had therefore not proceeded to conduct a full assessment of the environmental implications. The association contested the local authority's conclusions and put forward that a natural alternative to the concrete sea wall should have been considered. An adequate alternative would, acc