EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 7.5.2008 
SEC(2008) 1878 final 
  
COMMISSION OPINION 
on the Draft Decision of the European Pa rliament adopted on 22 April 2008 amending 
its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general 
conditions governing the performa nce of the Ombudsman's duties 
 
EN 3   EN EXPLANATORY MEMORANDUM 
Article 195 of the Treaty establishing the Eur opean Community (EC Treaty) and Article 107 
d Treaty establishing the European Atomic En ergy Community (Euratom  Treaty) stipulate 
that the regulations and th e general conditions governing the performance of the 
Ombudsman's duties are laid down by the Europ ean Parliament. The European Parliament 
adopted a decision - known as the Statute of the Ombudsman – establishing such regulations 
and general conditions in March 19941 and amended it in 20022. 
In a letter dated 11 July 2006 to the European Parliament, the Ombudsman considered that the 
Statute continues to provide a good framewor k for his activities. However, he identified 
several possible changes that would help the Ombudsman to work more effectively, for the 
benefit of the European citizens. Consequentl y, he requested the European Parliament to 
amend Articles 1, 3, 4 and 5 of his Statute. 
Some of the amendments suggested by the Omb udsman are purely technical, as they concern 
deleting the reference to the European Coal a nd Steel Community. Others are substantial and 
concern the right to intervene before the Cour t of Justice of the European Communities; the 
refusal of access to files on duly substant iated grounds of secrecy ; the testimony from 
officials; the information concerning possible criminal activities; and the cooperation in the 
field of fundamental rights. By letter dated 6 March 2008, the Ombudsman indicated that he 
would withdraw his request to in tervene in actions brought before  of the Court of Justice of 
the European Communities. 
At its plenary session of 22 April 2008, the Euro pean Parliament adopted seven amendments 
to the Statute of the Ombudsman, on the basis of the Ombudsman's requests.  
By letter of 23 April 2008, Parliament requested  the Commission, in accordance with Article 
195(4) of the EC Treaty and Article 107d(4) of  the Euratom Treaty, to give its opinion on 
these amendments. 
The Commission can agree to the amendments relating to the European Coal and Steel 
Community, which are of purel y formal nature. The Commissi on can also agree to the 
amendment relating to hearing of witnesses, wh ich confirms the principle whereby officials 
do not speak on a personal basis but as officials and thus continue to be bound by the relevant 
provisions of the Staff Regulations, in pa rticular the duty of professional secrecy. 
With regard to the remaining amendments, the Commission submits the following 
observations: 
                                                 
1 Decision of the European Parliament 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations 
and the general conditions governing the performan ce of the Ombudsman's duties, (OJ L 113, 4.5.1994, 
p. 15).  
2 Decision of the European Parliament of 14 March 2002 amending Decision 94/262/ECSC, EC, Euratom 
on the regulations and general conditions governing the performance of the Ombudsman's duties 
(2002/262/EC, ECSC, Euratom) (OJ L 92, 9.4.2002, p. 13). 
 
EN 4   EN Access to files  
The Commission shares Parliament’s concern fo r enhancing the citizen's confidence in the 
capacity of the Ombudsman to conduct thorough a nd impartial inquiries in alleged cases of 
maladministration. With this aim in view a nd considering the provisi ons on public access to 
documents held by the three Institutions3 and the rules on security governing the treatment of 
classified information applicable to the Commission4 and the Council5, a better definition of 
the conditions to be applied for access by the Ombudsman and his staff to sensitive and 
classified information is necessary.  
With regard to classified documents, the Comm ission welcomes Parliament's proposal that the 
Ombudsman shall apply rules strict ly equivalent to those in fo rce in the institution or body 
concerned.  
With regard to other information covered by the obligation of prof essional secrecy on the 
basis of rules of Community law affordi ng such information specific protection, the 
Commission shares Parliament's concern regard ing the need for the Ombudsman and his staff 
to treat requests from third parties for access to  documents obtained in th e course of inquiries 
in accordance with the conditions and limits provided for in Regulation 1049/2001, in particular Article 4 thereof. 
The Commission also shares Parliament's vi ew that the Ombudsman may agree with the 
institutions the operational conditions for access to information or documents. 
Therefore, the Commission can agree with  the aim of the amendments on access to 
documents, subject to a more precise wording as follows: 
Article 3(2), first subparagraph: The Community institutions and bodies shall be obliged to 
supply the Ombudsman with any information he has  requested of them and give him access to 
the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning 
of Article 9 of Regulation (EC) No 1049/2001, shall be subject 
to the rules on security of the institution or body and to the  observance by the Ombudsman 
of rules strictly equivalent to those in force in the instituti on or body in question.  
Article 4(1): The Ombudsman and his staff, to whom Article 287 of  the Treaty establishing the 
European Community and Article 194 of the Trea ty establishing the European Atomic Energy 
Community shall apply, shall be required not to divulge information or documents which they 
obtain in the course of th eir inquiries. They shall,  in particular  also  be required  not to 
divulge  any classified information or  any document supplied to the Ombudsman, in particular  
as sensitive documents within  the meaning of Article 9 of Regulation (EC) No 1049/2001, or 
as documents falling within the scope of the Community legislation regarding the protection 
of personal data, as well as  any information which could harm the person lodging the 
complaint or any other person invo lved, without prejudice to paragraph 2. 
                                                 
3 Regulation  (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 
regarding public access to European Parliament , Council and Commission documents, (OJ L 145, 
31.5.2001, p. 43). 
4 Commission Decision of 29 November 2001 amending its internal Rules of Procedure (2001/844/CE, 
CECA, -Euratom), (OJ L 317, 3.12.2001, p.1). 
5 Council Decision of 19 March 2001 adopting the security regulations of the Council (2001/264/CE), 
(OJ L 101, 11.4.2001, p.1). 
 
EN 5   EN The Ombudsman and his staff shall deal with app lications from third parties for access to 
documents obtained by the Ombudsman in the c ourse of inquiries in accordance with the 
conditions and limits provided for in Regulat ion (EC) No 1049/2001, in particular Article 4 
thereof. 
Information concerning possible criminal activity 
With regard to information concerning pos sible criminal activities about which the 
Ombudsman learns in the course  of his enquiries, in the Om budsman's view, the formulation 
of Article 4, paragraph 2 of the Statute might be interpreted as requiring the Ombudsman to 
act in a way that could hinder a European An ti-fraud office (OLAF) investigation within 
OLAF’s mandate by having to br ing it only to the attention of  national authorities before 
OLAF itself is ready to do so.  
The Commission agrees with Parliament that the Ombudsman should be able to notify OLAF 
of any information on matters within its remit. However, the Commission takes the view that the amendment proposed by Parliament does not n ecessarily meet this concern, since it is not 
clear that the notion of "competent institution or body" would cover OLAF. At the same time, 
it is already envisaged that the Ombudsman no tifies the institution or body with authority over 
the official in the following sentence. Finally, OLAF should only be notified in matters within 
its competence.  
In order to solve such poten tial problems, the Commission could agree to the following 
alternative wording, which sp ecifies that the Ombudsman s hould immediately notify the 
competent national authorities via the Permanent Representations of the Member States or the 
Community service in charge of combating fr aud, in cases falling within its mandate.  
Article 4(2): If, in the co urse of inquiries, he learns of fact s which he conside rs might relate to 
criminal law, the Ombudsman shall immediatel y notify the competent national authorities via 
the Permanent Representations of the Member States to the European Communities or the 
relevant service in charge of combating fraud, in cases falling within its mandate;
 if 
appropriate, the Ombudsman shall also notify the Community institu tion or body with 
authority over the official or servant conc erned, which may apply the second paragraph of 
Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body con cerned of the facts 
calling into question the conduct of  a member of their staff from  a disciplinary point of view.  
Co-operation in the field of human rights 
The current statute has proved to be a good basis for the Ombudsman to cooperate with 
national ombudsmen and similar bodies in th e Member States. The Commission fully 
encourages this practice. However, the Treaties have not granted the Ombudsman the 
competence to deal with human and fundamental rights in general.  
Concerning Parliament's amendment on coope ration with national and international 
institutions for the promotion and protection of  fundamental rights, th e Commission therefore 
considers that this proposal goes beyond the mandate given to the Ombudsman by the 
Treaties. 
 
EN 6   EN According to Articles 302 and 303 of the EC Treaty, it is the Commission, as representative 
of the Community, which establishes all approp riate forms of cooperation with international 
organisations in general and with the Council of Europe in particular. It  should also be noted 
that in 2007 an Agreement was concluded betw een the Community and the Council of Europe 
on co-operation between the Eu ropean Union Agency for Fundamental Rights and the 
Council of Europe.  
With this in mind, the Commission could, howev er, agree to an alte rnative wording, which 
would address the concerns expressed above, as follows:  
Article 5.  The Ombudsman may, under the same conditions  and within the scope of his 
functions as laid down in Article 195 of the Treaty establishing the European Community 
and Article 107 d of the Treaty  establishing the European  Atomic Energy Community,  
cooperate with  institutions and bodies of Member States in charge of  the promotion and 
protection of fundamental rights. 
In conclusion, it is proposed that the Commission adopts the following draft opinion. 
COMMISSION OPINION 
on the Draft Decision of the European Pa rliament adopted on 22 April 2008 amending 
its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general 
conditions governing the performa nce of the Ombudsman's duties 
The Commission, 
Having regard to Article 195(4) of the Treat y establishing the European Community and 
Article 107d(4)of the Treaty establishing the European Atomic Energy Community;  
HEREBY DELIVERS THE FOLLOWING OPINION  
The citizens must have confidence in the Ombudsman's capacity to conduct thorough and 
impartial inquiries in alleged cases of maladministration. The Ombudsman needs clear, concise and efficient rules. The Commission ther efore broadly shares the principles adopted 
by the European Parliament subj ect to the following comments: 
The Commission shares Parliament’s concern fo r enhancing the citizen's confidence in the 
capacity of the Ombudsman to conduct thorough a nd impartial inquiries in alleged cases of 
maladministration. With this aim in view, and considering the rules on public access to 
documents of the three Institutions and of se curity governing the treatment of classified 
information applicable to the Commission and th e Council, a better definition is necessary of 
the conditions applicable for having access to cl assified information and to other information 
covered by the obligation of  professional secrecy.  
The Commission also shares Parliament's con cern regarding the need for the Ombudsman and 
his staff to treat requests from third parties for access to documen ts obtained in the course of 
inquiries in accordance with the conditions and limits provided for in Regulation 1049/2001, 
in particular Article 4 thereof. 
Therefore, the Commission can agree with the aim of the amendments on access to files and 
documents. However, the Commission considers th at an alternative and more precise wording 
is required. 
 
EN 7   EN Moreover, the Commission also shares Parliame nt's views according to which the Statute 
should include the possibility for the Ombudsma n to notify the European Anti-Fraud Office 
(OLAF) of any information falling within its remit. However, the Commission would be in 
favour of an alternative and more precise wording. 
The Commission can not agree with the amendmen t concerning the cooperation in the field of 
fundamental rights in its current form, but it would be open to a wording, which would not 
create the impression of widening the competence of the Ombudsman as defined in the Treaties or impinging on the Commissi on's institutional prerogatives.  
The Commission can agree to the aim of the ame ndment relating to testimonies that confirms 
the principle whereby officials do not speak  on a personal basis but as officials.  
Finally, the amendments relating to the Europe an Coal and Steel Community are of purely 
formal nature and do not give rise to any comments.