Commission Opinion on amendments to the regulations and general conditions governing the performance of the Ombudsman's duties
Date: 2002-03-06
Institutions: European Commission
Subjects: European Ombudsman, access to information, confidentiality, evidence, occupational status

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 6.3.2002
COM (2002) 133 final

COMMISSION OPINION

on amendments to the regulations and general conditions governing the performance of
the Ombudsman's duties

EXPLANATORY MEMORANDUM

1. The establishment of the Ombudsman under the Maastricht Treaty on European Union is
an important element of European citizenship and greater democratic control. The essential
in Article 195 of the Treaty which
principles applying to the Ombudsman are set out
stipulates that the regulations and general conditions governing the performance of the
Ombudsman's duties are to be adopted by decision of the European Parliament, which
occurred with a Decision of 9 March 1994.1

2.
In a letter dated 13 December 1999, the European Parliament received a request from the
European Ombudsman aimed at amending the provisions concerning the Ombudsman's
access to documents and the hearing of witnesses.

3. The Ombudsman has suggested three amendments to Article 3(2):

removing the possibility of refusing to communicate a dossier to the Ombudsman "on

-
duly substantiated grounds of secrecy";

-
removing the indication that when officials give evidence to the Ombudsman they "speak
on behalf of and in accordance with instructions from their administrations and continue to
be bound by their duty of professional secrecy";

inclusion of the members of the institutions and bodies in the category of persons who

-
have to give evidence to the Ombudsman when so requested.

The Ombudsman has indicated,
in a note dated 14 May 2001 to Mrs Almeida-Garett,
rapporteur for the European Parliament's Constitutional Affairs Committee, that he would
withdraw the latter request.

4. At its plenary session of 6 September 2001, Parliament acted on the first and second of
the Ombudsman's requests.

It proposed to lift the secrecy exception for access to dossiers and remove the words "on
behalf of and in accordance with instructions from their administrations" as regards evidence
by officials.

The words "shall continue to be bound by their duty of professional secrecy" have been
deleted and replaced by "shall give complete and truthful information".

5. Departing from the Ombudsman's proposals, Parliament proposes that in all cases where
documents are classified as secret or confidential the Ombudsman cannot divulge their
content.

6.
In addition, with regard to access to documents coming from the Member States, the
European Parliament went further than the Ombudsman's requests. In the case of classified
documents Member States would simply be informed, whereas hitherto their authorisation
was requested for documents classified as secret by a law or a regulation and they were
simply informed in the case of other documents.

1

Decision 94/262/ECSC, EC, Euratom, OJ L 113 of 4 May 1994, p. 15.

2

7. The Commission shares Parliament's concern for more democracy and agrees with the
need to bring citizens closer to Community affairs, as set out in the White Paper on European
governance. Undoubtedly, with this aim in view, greater openness is desirable in the
administrative decision-making process.

the Charter of Fundamental Rights has enshrined the right

8. Moreover,
to good
administration, and transparency of decision-making processes is one of the principles
underlying the reforms in progress. It is in this new context that Parliament's proposal to
clarify the European Ombudsman's investigative powers should be considered.

In a letter dated 16 October 2001, Parliament requested the Commission, in accordance with
Article 195(4) of the EC Treaty to give its opinion on these amendments.

Access to documents

9. With regard to lifting the secrecy exception for access to a dossier, it should be noted that
the Commission has never used this exception. Consequently, consideration might be given,
acting on Parliament's proposal, to align the law on the de facto situation, even if it is clear
that achieving transparency in relations with the Ombudsman has been possible in the
framework of the current European legislation.

In addition, the Commission has no objection of principle to allowing the Ombudsman to
consult or take a copy of any document. However in the practical application of this principle,
caution should be exercised with regard in particular to requirements concerning the
protection of privacy and business secrecy and future institutional developments.

10. In this connection, it is essential that the new rules should cover certain existing gaps:
information or documents coming from international
treatment of secret/confidential
organisations or third countries, arrangements for transmitting documents covered by business
secrecy and personal data. The Commission therefore approves the fact that Parliament has
proposed to include in the rules governing the Ombudsman the principle whereby in all cases
where documents are classified as secret or confidential the Ombudsman cannot divulge their
content. It would also like to be able to maintain the current practice of reserving certain
information for the exclusive attention of the Ombudsman.

The services of the European Ombudsman should nevertheless apply strictly equivalent
security rules to those set out in the rules of procedure of the Council and the Commission.2

In particular, in order to be able to have access to documents, e.g. in the framework of judicial
and of police cooperation in criminal matters, Commission staff are subject
to a prior
authorisation procedure. A similar authorisation should therefore be envisaged for staff of the
Ombudsman's office who need to consult or take a copy of such documents.

11. With regard to documents coming from the Member States, it is important to remain
consistent with the principles set out
in the new European Parliament and Council
Regulation 1049/2001 of 30 May 2001 on public access to documents3 and in the framework
agreement between the Commission and Parliament. The amendment proposed by Parliament

2

3

of
Commission Decision
3 December 2002, p. 1; Council Decision 2001/264/EC of 19 March 2001, OJ L 101 of 11 April 2001,
p. 1.
OJ L 145 of 31 May 2001, p. 33.

2001/844/EC, ECSC, Euratom of

29 November 2001, OJ L 317

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should be treated with reserve. The principle of obtaining the prior authorisation of the
Member State in question is provided for in Article 4(5) of Regulation 1049/2001 and in
Article 3(2) of Annex III to the framework agreement. Lastly, declaration 35 annexed to the
Final Act of the Amsterdam Treaty also points in the same direction, as do the security
provisions mentioned at the end of point 10.

Hearing of witnesses

12. With regard to the giving of evidence, it should be pointed out that the current wording of
Article 3 of the rules governing the Ombudsman is in accordance with Article 3(3)
subparagraph 2 of the Decision of the European Parliament, the Council and the Commission
of 19 April 1995 laying down the detailed provisions governing the exercise of Parliament's
right of enquiry.4 Parliament, like the Ombudsman, is now seeking to render more explicit the
obtaining of authentic and complete evidence and seems to regard the obligation to give
evidence under instructions as restricting this principle. The Commission can accept deleting
the words in question subject to the following.

13. It is important to maintain in some way the principle whereby officials do not speak on a
personal basis but as officials and hence supply the elements and clarifications of a dossier for
which they are responsible within the administration. In giving their evidence, they remain at
all events bound by the obligations deriving from the Staff Regulations of officials of the
European Communities and Article 287 of the EC Treaty.

In conclusion, it is proposed that the Commission adopt the following draft opinion.

4

Decision 95/167/EC, Euratom, ECSC, OJ L 113 of 19 May 1995, p. 2.

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COMMISSION OPINION

on amendments to the regulations and general conditions governing the performance of
the Ombudsman's duties

The Commission,

Having regard to Article 195(4) of the Treaty establishing the European Community;

Having regard to the resolution of the European Parliament of 6 September 2001 on the
amendment of Article 3 of the rules governing the Ombudsman,

HEREBY DELIVERS THE FOLLOWING OPINION

The Commission very broadly shares the principles adopted by the European Parliament
subject to the following comments:

1. With regard to the amendment suggested by Parliament concerning the lifting of secrecy
for access to a dossier, it is necessary to comply with requirements concerning the protection
of privacy, industrial secrets and classified information, and future institutional developments.

In this connection, it is essential that the new Article 3 should provide that, in all cases where
documents are classified, the Ombudsman cannot divulge their content. It should also be
specified that certain documents may be transmitted to the Ombudsman on condition that they
are not communicated to third parties, or even the complainant, where they are such as to be
detrimental to the smooth functioning of the institution. In addition, classified information of
the European Union transmitted to the Ombudsman should be treated by the latter according
to rules equivalent to those in force at the Council and at the Commission and, in particular,
along the lines of what is provided for with regard to the officials of those institutions,
provision should be made for authorisation for the staff of the Ombudsman's office who need
to consult or take copies of documents.

With regard to documents coming from the Member States, it is necessary to be consistent
with the principles set out in the new Regulation 1049/2001 of the European Parliament and
the Council on public access to documents and in the framework agreement between the
Commission and Parliament. The principle of obtaining prior authorisation from the
Member State in question should be maintained. Declaration 35 annexed to the Final Act of
the Amsterdam Treaty points in the same direction.

2.
With regard to the giving of evidence, the Commission can accept the removal of the
obligation to give evidence under instructions. However, it is important to maintain the
principle whereby officials do not speak on a personal basis but as officials and therefore
supply the elements and clarifications of a dossier for which they are responsible. At all
events, they remain bound by the obligations deriving from the Staff Regulations of officials
of the European Communities and Article 287 of the EC Treaty.

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