Commission Opinion on the Draft Decision of the European Parliament adopted on 22 April 2008 amending its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties
Date: 2008-05-07
Institutions: European Commission
Subjects: European Ombudsman, access to information, institutional cooperation, legal status, powers of the institutions (EU), professional secret, regulations for civil servants

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 7.5.2008 
SEC(2008) 1878 final 

COMMISSION OPINION 

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

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EXPLANATORY MEMORANDUM 

Article 195 of the Treaty establishing the European Community (EC Treaty) and Article 107 
d  Treaty  establishing  the  European  Atomic  Energy  Community  (Euratom  Treaty)  stipulate 
that  the  regulations  and  the  general  conditions  governing  the  performance  of  the 
Ombudsman's  duties  are  laid  down  by  the  European  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  framework  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.  Consequently,  he  requested  the  European  Parliament  to 
amend Articles 1, 3, 4 and 5 of his Statute. 

Some of the amendments suggested by the Ombudsman are purely technical, as they concern 
deleting the reference to the European Coal and Steel Community. Others are substantial and 
concern the right to intervene before the Court of Justice of the European Communities; the 
refusal  of  access  to  files  on  duly  substantiated  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 intervene in actions brought before of the Court of Justice of 
the European Communities. 

At its plenary session of 22 April 2008, the European 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  purely  formal  nature.  The  Commission  can  also  agree  to  the 
amendment  relating  to  hearing  of  witnesses,  which  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 particular the duty of professional secrecy. 

With  regard  to  the  remaining  amendments,  the  Commission  submits  the  following 
observations: 

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Decision of the European Parliament 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations 
and the general conditions governing the performance of the Ombudsman's duties, (OJ L 113, 4.5.1994, 
p. 15). 
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). 

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Access to files 

The  Commission  shares  Parliament’s  concern  for  enhancing  the  citizen's  confidence  in  the 
capacity  of  the  Ombudsman  to  conduct  thorough  and  impartial  inquiries  in  alleged  cases  of 
maladministration. With this aim in view and considering the provisions 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 Commission welcomes Parliament's proposal that the 
Ombudsman  shall  apply  rules  strictly  equivalent  to  those  in  force  in  the  institution  or  body 
concerned.  

With  regard  to  other  information  covered  by  the  obligation  of  professional  secrecy  on  the 
basis  of  rules  of  Community  law  affording  such  information  specific  protection,  the 
Commission shares Parliament's concern regarding the need for the Ombudsman and his staff 
to treat requests from third parties for access to documents obtained in the 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  view  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 institution 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 Treaty establishing the European Atomic Energy 
Community shall apply, shall be required not to divulge information or documents which they 
obtain  in  the  course  of  their  inquiries.  They  shall,  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 involved, without prejudice to paragraph 2. 

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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). 
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). 
Council  Decision  of  19  March  2001  adopting  the  security  regulations  of  the  Council  (2001/264/CE), 
(OJ L 101, 11.4.2001, p.1). 

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

Information concerning possible criminal activity 

With  regard  to  information  concerning  possible  criminal  activities  about  which  the 
Ombudsman learns in the course of his enquiries, in the Ombudsman'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  Anti-fraud  office  (OLAF)  investigation  within 
OLAF’s  mandate  by  having  to  bring  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 necessarily 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 notifies 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  potential  problems,  the  Commission  could  agree  to  the  following 
alternative  wording,  which  specifies  that  the  Ombudsman  should  immediately  notify  the 
competent national authorities via the Permanent Representations of the Member States or the 
Community service in charge of combating fraud, in cases falling within its mandate.  

Article 4(2): If, in the course of inquiries, he learns of facts which he considers might relate to 
criminal law, the Ombudsman shall immediately notify the competent national authorities via 
the  Permanent  Representations  of  the  Member  States  to  the  European  Communities  or  the 
relevant  service  in  charge  of  combating  fraud,  in  cases  falling  within  its  mandate;  if 
appropriate,  the  Ombudsman  shall  also  notify  the  Community  institution  or  body  with 
authority  over  the  official  or  servant  concerned,  which  may  apply  the  second  paragraph  of 
Article  18  of  the  Protocol  on  the  Privileges  and  Immunities  of  the  European  Communities. 
The Ombudsman may also inform the Community institution or body concerned of the facts 
calling into question the conduct of a member of their staff from a disciplinary point of view. 

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  the  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  cooperation  with  national  and  international 
institutions for the promotion and protection of fundamental rights, the Commission therefore 
considers  that  this  proposal  goes  beyond  the  mandate  given  to  the  Ombudsman  by  the 
Treaties. 

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According to Articles 302 and 303 of the EC Treaty, it is the Commission, as representative 
of the Community, which establishes all appropriate 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 between the Community and the Council of Europe 
on  co-operation  between  the  European  Union  Agency  for  Fundamental  Rights  and  the 
Council of Europe.  

With  this  in  mind,  the  Commission  could,  however,  agree  to  an  alternative  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 Parliament adopted on 22 April 2008 amending 
its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general 
conditions governing the performance of the Ombudsman's duties 

The Commission, 
Having  regard  to  Article  195(4)  of  the  Treaty  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 therefore broadly shares the principles adopted 
by the European Parliament subject to the following comments: 

The  Commission  shares  Parliament’s  concern  for  enhancing  the  citizen's  confidence  in  the 
capacity  of  the  Ombudsman  to  conduct  thorough  and  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  security  governing  the  treatment  of  classified 
information applicable to the Commission and the Council, a better definition is necessary of 
the conditions applicable for having access to classified information and to other information 
covered by the obligation of professional secrecy.  

The Commission also shares Parliament's concern regarding the need for the Ombudsman and 
his staff to treat requests from third parties for access to documents 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 that an alternative and more precise wording 
is required. 

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Moreover,  the  Commission  also  shares  Parliament's  views  according  to  which  the  Statute 
should include the possibility for the Ombudsman 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 amendment 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 Commission's institutional prerogatives.  

The Commission can agree to the aim of the amendment 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  European  Coal  and  Steel  Community  are  of  purely 
formal nature and do not give rise to any comments. 

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