Decision of the European Ombudsman adopting Implementing Provisions
Date: 2016-07-20
Institutions: European Ombudsman
Subjects: access to EU information, appeal to the European Ombudsman, mediator








C_2016321EN.01000101.xml










1.9.2016   


EN


Official Journal of the European Union


C 321/1





Decision of the European Ombudsman adopting Implementing Provisions
(2016/C 321/01)
Article 1
Definitions
For the purposes of these implementing provisions:






(a)


‘institution’ means a European Union institution, body, office or agency;










(b)


the ‘Statute’ means the Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties (1);










(c)


the ‘Ombudsman’ is the person elected by the European Parliament pursuant to Article 228 of the Treaty on the Functioning of the European Union;










(d)


the ‘Secretariat’ comprises the officials and other agents who assist the Ombudsman;










(e)


a ‘document’ shall mean any content, whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording).




Article 2
Receipt of complaints
2.1.   The Ombudsman shall accept complaints submitted in writing, either electronically or on paper. The Ombudsman shall take appropriate measures to assist persons with disabilities to exercise their right to submit a complaint to the Ombudsman.
2.2.   A complainant shall identify any information in the complaint that the complainant considers confidential. The identification of any such information as confidential by a complainant shall not prevent the Ombudsman, for the purposes of carrying out an inquiry, from communicating the information to the institution concerned.
2.3.   The Ombudsman shall treat a petition transferred to the Ombudsman by the European Parliament with the consent of the petitioner as a complaint.
2.4.   In appropriate cases, and with the consent of the complainant, the Ombudsman may transfer a complaint to another competent authority.
Article 3
Initial processing of complaints
3.1.   The Ombudsman shall determine whether a complaint is within the mandate and, if so, whether it is admissible pursuant to Article 2 of the Statute. The Secretariat may request the complainant to provide further information or documents to enable the Ombudsman to make that determination.
3.2.   If a complaint is outside the mandate of the Ombudsman, or is inadmissible, the Ombudsman shall close the file on the complaint.
3.3.   The Ombudsman shall decide whether there are grounds to inquire into an admissible complaint. If the Ombudsman considers that there are no grounds to conduct an inquiry, the Ombudsman shall close the file on the complaint.
Article 4
Information gathering actions during inquiries
4.1.   When the Ombudsman finds grounds to open an inquiry, the Ombudsman shall identify the allegations made by the complainant that fall within the scope of the inquiry.
4.2.   The Ombudsman may ask the institution concerned to provide a reply in relation to those allegations. The Ombudsman may also ask the institution concerned to set out in its reply its views on specific aspects of the allegations and on specific issues arising from or related to the complaint.
4.3.   The Ombudsman may ask an institution to send information or documents to the Ombudsman. The Ombudsman may, after consulting with the institution concerned, also arrange to inspect relevant documents.
4.4.   The institution's replies on the matters referred to in paragraphs 4.2 and 4.3 shall be made within the timeframe specified by the Ombudsman, which shall normally not exceed three months. The precise timeframe for providing a reply shall be reasonable, taking into account the complexity and urgency of the inquiry. If the Ombudsman considers that the inquiry is of public interest, the timeframe for responding shall be as short as is reasonably possible. If the institution concerned is not in a position to provide a reply to the Ombudsman within the set timeframe, it shall make a reasoned request for an extension.
4.5.   The Ombudsman may ask the institution concerned to organise a meeting with the Ombudsman in order to clarify issues falling within the scope of the inquiry.
4.6.   The Ombudsman may require officials or other servants of an institution to testify in accordance with the rules laid down in the Statute. The Ombudsman may decide that the person testifying shall do so in confidence.
4.7.   The Ombudsman may, for the purposes of carrying out an inquiry, request a Member State, through its Permanent Representation, to provide information or documents relating to the alleged maladministration by an institution, in accordance with the rules set out in the Statute.
4.8.   When an institution or a Member State provides information or documents to the Ombudsman pursuant to paragraph 4.2, 4.3, 4.5 or 4.7, they shall clearly identify any information they consider to be confidential. The Ombudsman will not disclose any such confidential information, either to the complainant or to the public, without the prior agreement of the institution or the Member State concerned.
4.9.   If an institution or a Member State does not provide the Ombudsman with the assistance described in paragraph 4.2, 4.3, 4.5 or 4.7, the Ombudsman shall remind the institution or Member State concerned why that assistance is necessary. If, after discussion with the institution or Member State concerned, the matter cannot be resolved to the satisfaction of the Ombudsman, the Ombudsman shall inform the European Parliament and request it to take whatever action it considers appropriate.
4.10.   The Ombudsman may, for the purposes of carrying out an inquiry, ask the complainant or any third party to provide the Ombudsman with information or documents, or to clarify information or documents already provided to the Ombudsman. The Ombudsman may also request a meeting with the complainant in order to clarify issues falling within the scope of the inquiry.
4.11.   The Ombudsman may commission any studies or expert reports that he or she considers relevant to the inquiry.
Article 5
Proposals for solutions
5.1.   If the Ombudsman considers that a complaint can be resolved, the Ombudsman shall seek a solution with the institution concerned.
5.2.   The institution concerned shall reply to the Ombudsman's proposal for a solution within a specified timeframe, which shall normally not exceed three months. The precise timeframe for providing a reply shall be reasonable, taking into account the complexity and urgency of the inquiry. If the Ombudsman considers that the inquiry is of public interest, the timeframe for responding shall be as short as is reasonably possible. If the institution concerned is not in a position to provide a reply to the Ombudsman within the set timeframe, it shall make a reasoned request for an extension.
5.3.   The Ombudsman shall provide the complainant with a copy of the proposal for a solution and the institution's reply to that proposal after obtaining the reply of the institution concerned. The complainant may submit comments to the Ombudsman within one month.
Article 6
Findings and recommendations
6.1.   The Ombudsman may make suggestions for improvement regarding issues related to the inquiry in the course of an inquiry.
6.2.   Where the Ombudsman finds no maladministration, that a solution has been found or that no further inquiries are justified, the inquiry shall be closed with a decision setting out findings. The Ombudsman shall send the decision to the complainant and to the institution concerned.
6.3.   Where the Ombudsman finds maladministration, the Ombudsman shall make any appropriate recommendation(s) to the institution concerned in accordance with Article 3(6) of the Statute and ask the institution concerned to provide an opinion on the recommendation(s) within three months. The opinion shall state whether and, if so, how the institution has implemented or intends to implement the recommendation(s). The Ombudsman shall forward the opinion to the complainant, who may submit comments on it within one month.
6.4.   Where the Ombudsman becomes aware that the matter under investigation by the Ombudsman has become the subject of legal proceedings, the Ombudsman shall close the inquiry and inform the complainant and the institution.
Article 7
Closure of inquiries finding maladministration and reports to Parliament
7.1.   The Ombudsman, after analysing the opinion of the institution concerned and any comments submitted by the complainant in accordance with Article 6.3 of this Decision, may close the inquiry setting out definitive findings.
7.2.   The Ombudsman shall report to the European Parliament on his or her inquiries on a regular basis, including by way of an annual report.
7.3.   The Ombudsman may submit a Special Report to the European Parliament on any inquiry in which the Ombudsman finds maladministration and which the Ombudsman considers to be of significant public interest.
Article 8
Own-initiative inquiries
8.1.   The Ombudsman shall conduct own-initiative inquiries for which the Ombudsman finds grounds.
8.2.   The procedures applicable to inquiries opened following a complaint shall apply, to the extent that they are relevant, to own-initiative inquiries.
Article 9
Points of procedure
9.1.   If the Ombudsman considers it appropriate to do so, the Ombudsman may take steps to ensure that a complaint is dealt with as a matter of priority, taking into account strategic objectives.
9.2.   The Ombudsman shall, to the extent necessary, keep the complainant informed about the progress of an inquiry. If the Ombudsman considers it necessary to clarify with the complainant any aspect of an institution's reply to the Ombudsman, the Ombudsman may decide to provide the complainant with the reply of the institution concerned. If the Ombudsman decides to do so, the Ombudsman may also provide the complainant with a copy of the Ombudsman's letter to the institution requesting a reply.
9.3.   The Ombudsman may make public non-confidential information about the progress of an inquiry. In particular, in inquiries of public interest, the Ombudsman may publish the letters the Ombudsman sends to the institutions or Member States, and the replies thereto.
9.4.   The Ombudsman shall retain possession of documents obtained from an institution or a Member State during an inquiry, and declared to be confidential by that institution or Member State, only for so long as the inquiry is ongoing and the period of time for dealing with any request for review has not expired. The Ombudsman may request an institution or Member State to retain such documents for a period of at least five years following a notification to them that the Ombudsman no longer retains the documents.
9.5.   The complainant shall be entitled to see the Ombudsman's file on the complaint when making a request for review pursuant to Article 10 of this Decision, with the exception of documents declared confidential by an institution, a Member State or the Ombudsman, and of any other confidential information in the file.
9.6.   The Ombudsman shall adopt rules on public access to documents based on Regulation (EC) No 1049/2001 (2).
9.7.   The Ombudsman may, for the protection of the legitimate interests of the complainant or of a third party, classify information in a complaint or in other documents as confidential on the Ombudsman's own initiative.
9.8.   The Ombudsman shall deal with abusive communications and with complaints that amount to an abuse of process in accordance with guidelines adopted by the Ombudsman for this purpose.
9.9.   The Ombudsman may decide to discontinue an inquiry at the request of the complainant. This shall not prevent the Ombudsman from opening an own-initiative inquiry into the subject matter of the complaint.
9.10.   The Ombudsman may close an inquiry where the complainant has failed to provide any requested information or any requested comments.
Article 10
Requests for review
10.1.   A complainant shall have the right to request a review of a decision taken pursuant to Articles 3.2 and 3.3 of this Decision, and of any finding in a decision closing an inquiry with the exception of a finding of maladministration.
10.2.   The detailed rules on how the Ombudsman deals with requests for review shall be set out in a decision of the Ombudsman.
Article 11
Delegation of complaint handling
The Ombudsman may delegate to the Secretariat parts of the complaint-handling process. The Secretariat shall inform the complainant of the right to request the Ombudsman to review any decision taken by the Secretariat.
Article 12
Cooperation with ombudsmen and similar bodies in Member States
The Ombudsman may cooperate with ombudsmen and similar bodies in the Member States, including through the European Network of Ombudsmen.
Article 13
Languages
13.1.   Any person may write to the Ombudsman in any Treaty language, on any matter falling within the Ombudsman's competence. The Ombudsman shall draft the response in that Treaty language.
13.2.   A complaint may be submitted to the Ombudsman in any Treaty language. The Ombudsman shall communicate with a complainant in that language.
13.3.   In exceptional circumstances, the Ombudsman may request the institutions to provide copies of relevant documents in the language of the complaint. In making such a request, the Ombudsman shall act proportionately to the needs of the complainant and reasonably with regard to the resources of the institutions.
Article 14
Entry into force
14.1.   The Ombudsman repeals the implementing provisions adopted on 8 July 2002, as amended 5 April 2004 and 3 December 2008.
14.2.   The present Decision shall come into effect on 1 September 2016. It shall apply to all inquiries ongoing on that date, all inquiries opened on that date and any complaints concerning which the Ombudsman has, on that date, not yet taken a position.
14.3.   The Ombudsman shall inform the President of the European Parliament of this Decision.
14.4.   The Ombudsman shall publish this Decision in the Official Journal and on the Ombudsman's website.

Done at Strasbourg, 20 July 2016.

Emily O'REILLY

The European Ombudsman





(1)  Adopted by Parliament on 9 March 1994 (OJ L 113, 4.5.1994, p. 15) and amended by its decisions of 14 March 2002 (OJ L 92, 9.4.2002, p. 13) and 18 June 2008 (OJ L 189, 17.7.2008, p. 25).

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