COMMISSION OPINION on a draft Regulation of the European Parliament laying down the regulations and general conditions governing the performance of the Ombudsman's duties (Statute of the European Ombudsman) and repealing Decision 94/262/ECSC, EC, Euratom
Date: 2019-10-31
Institutions: European Commission, Secretariat-General
Subjects: European Ombudsman, access to information, appeal to the European Ombudsman, drafting of EU law, operation of the Institutions, opinion of the Commission, psychological harassment, sexual harassment, staff regulations (EU), whistleblowing

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 31.10.2019  COM(2019) 533 final  COMMISSION OPINION on a draft Regulation of the European Parliament laying down the regulations and general conditions governing the performance of the Ombudsman's duties (Statute of the European Ombudsman) and repealing Decision 94/262/ECSC, EC, Euratom  
 
 
COMMISSION OPINION 

on a draft Regulation of the European Parliament laying down the regulations and 
general conditions governing the performance of the Ombudsman's duties (Statute of the 
European Ombudsman) and repealing Decision 94/262/ECSC, EC, Euratom 

On 25 March 2019 and in accordance with Article 228(4) of the Treaty on the Functioning of 
the  European  Union  (TFEU),  the  European  Parliament  sent  a  letter  to  the  European 
Commission seeking its opinion on a draft Regulation of the European Parliament, adopted at 
its  plenary  session  on  12  February  2019,  laying  down  the  regulations  and  general  conditions 
governing the performance of the Ombudsman's duties (Statute of the European Ombudsman) 
and repealing Decision 94/262/ECSC, EC, Euratom. 

The Commission welcomes the draft regulation, which reviews the Ombudsman’s Statute for 
the  first  time  since  the  entry  into  force  of  the  Lisbon  Treaty.  Many  of  the  proposed 
amendments  consolidate  current  practice  or 
the 
Commission  does  not  agree  with  some  of  the  amendments  and/or  wishes  to  comment  on 
certain aspects (see below). 

improvements.  However, 

introduce 

RECITAL 5 - RECOMMENDATIONS ON THE APPLICATION OF COURT RULINGS 

Recital  5  of  the  draft  Regulation  states  that  the  Ombudsman  ‘has  the  right  to  make 
recommendations where the Ombudsman finds that a Union institution, body, office or agency 
is not properly applying a court ruling’. 

The Commission does not agree with this proposal for the following reasons: 

(1) 

There is no legal basis in the EU Treaties for the Ombudsman to assess the application 
of  a  court  ruling.  The Treaties  contain  a  comprehensive  system  of  legal  remedies to 
ensure that the institutions apply court rulings properly. More specifically, Article 266 
TFEU provides that ‘the institution whose act has been declared void or whose failure 
to act has been declared contrary to the Treaties shall be required to take the necessary 
measures  to  comply  with  the  judgement  of  the  Court  of  Justice  of  the  European 
Union’. The institutions make every effort to comply with this obligation, which is a 
cornerstone of  the  Union’s  judicial system.  The  Commission  recalls  that,  should the 
concerned  party  not  be  satisfied  with  the  measures  taken,  it  can  bring  proceedings 
under  Article  263  TFEU,  and  should  the  institution  fail  to  act,  the  concerned  party 
could,  under  certain  conditions,  act  under  Article  265  TFEU.  In  addition,  that  party 
can  lodge  an  action  to  ask  for  compensation  for  damages  under  Article  340  TFEU. 
Therefore,  while  the  Ombudsman  can  take  account  of  a  judgement  of  the  Court  of 
Justice when assessing the activities of an institution in the course of an inquiry, the 
assessment of the application of Court rulings as such goes beyond its mandate. 

(2) 

The recital is not compatible with the second subparagraph of Article 228(1) TFEU, 
which  provides  for  the  Ombudsman  to  conduct  inquiries  ‘except  where  the  alleged 
facts are or have been the subject of legal proceedings’. As the Court has stated, in the 
institution of the Ombudsman, the Treaty has given citizens an alternative remedy to 
that of an action before a Union court in order to protect their interests and it is clear 

1 

 
that the two remedies cannot be pursued at the same time.1 This situation is reflected 
in Article 1(3) of the current Statute, which clearly states that ‘the Ombudsman may 
not intervene in cases before Courts or question the soundness of a Court's ruling’, and 
is retained, with a more precise formulation, in the proposed Statute, with the addition 
that the Ombudsman may not question a court’s competence to issue a ruling. In order 
to make recommendations to the institutions with regard to the follow-up of a specific 
ruling,  the  Ombudsman  would  have  to  interpret  the  ruling.  However,  this  is  the 
competence of the Court. If the meaning or scope of a judgment is in doubt, the Court 
of Justice shall construe it on application by any party or any institution of the Union 
establishing an interest therein (Article 43 of Protocol No 3 on the Statute of the Court 
of Justice of the European Union). 

(3) 

Under Article 228(1) TFEU, the Ombudsman is not empowered to conduct inquiries 
concerning  instances  of  maladministration  relating  to  the  Court  of  Justice  ‘in  its 
judicial role’.  The proposed  recital would, in  a sense, circumvent this prohibition  ex 
post  by  enabling  the  Ombudsman  to  interpret  rulings  and  comment  on  their 
implementation, while this is the exclusive competence of the courts. 

ARTICLE 2(2) - COMPLIANCE WITH DATA PROTECTION RULES 

Article 2(2) requires the Ombudsman to inform Union institutions, bodies, offices or agencies 
of complaints, while respecting the EU personal data protection provisions. 

The Commission agrees with this proposal, as it emphasises correctly that the Ombudsman 
is also bound by the EU data protection rules. 

ARTICLE 2(4) - EXTENSION OF THE DEADLINE LODGING OF A COMPLAINT 

Article 2(4) provides that ‘[a] complaint shall be made within three years of the date on which 
the facts on which it is based came to the attention of the complainant and shall be preceded by 
the  appropriate  administrative  approaches  to  the  institutions,  bodies,  offices  and  agencies 
concerned.’ 

The Commission does not agree with this proposal for the following reason: 

The current 2-year period does not seem to have raised any problems and there is no concrete 
justification for extending this period with another year. In addition, the more time elapses, the 
more difficult it is for the administration to address the issue raised. The proposal is therefore 
neither in the administrations’ nor in the citizens’ interest.  

ARTICLE 3(8) - EXTENSION OF THE DEADLINE FOR THE COMMISSION OPINION 

Article 3(8) provides that: ‘[w]here instances of maladministration have been found following 
an  inquiry,  the  Ombudsman  shall  inform  the  institution,  body,  office  or  agency  concerned, 
where  appropriate  making  recommendations.  The  institution,  body,  office  or  agency  so 
informed shall send the Ombudsman a detailed opinion within three months. The Ombudsman 
may,  upon  a  reasoned  request  of  the  institution,  body,  office  or  agency  concerned,  grant  an 
extension of that deadline, which shall not exceed two months. When no opinion is delivered 
by the institution, body, office or agency concerned within the three month deadline or within 
the extended deadline, the Ombudsman may close the inquiry without such an opinion.’ 

1  Case T-209/00 Lamberts v. European Ombudsman, EU:T:2002:94, paragraphs 65 and 66 as confirmed by the 

ECJ on appeal in case C-234/02 P, EU:C:2004:174. 

2 

 
                                                 
The Commission agrees with this proposal, as it reflects existing practice:  

– 

– 

The current rule is that, where the Ombudsman issues recommendations in the context 
of a decision of maladministration, the Commission has to reply within 3 months. In 
theory,  no  extension  can  be  granted,  but  in  practice,  two  1-month  extensions  can 
usually  be  obtained  at  the  Commission’s  request.  The  proposed  text  reflects  this 
practice.  

The provision that an extension of the deadline must be based on a reasoned request 
and that if no opinion is delivered the Ombudsman may close the inquiry without such 
an opinion also reflects existing practice. 

NEW PROVISIONS ON HARASSMENT CASES (MORAL AND SEXUAL) 

 

 

 

Article  14,  first  paragraph,  provides  that:  ‘[t]he  Ombudsman  shall  assess  the 
procedures  in  place  to  prevent  harassment  of  any  kind  and  nature  within  the  Union 
institutions, bodies, offices and agencies, as well as the mechanisms to penalise those 
responsible of harassment. The Ombudsman shall draw up appropriate conclusions as 
to  whether  those  procedures  are  consistent  with  the  principles  of  proportionality, 
adequacy  and  energetic  action,  and  whether  they  provide  victims  with  effective 
protection and support’; 

Article  14,  second  paragraph,  provides  that:  ‘[t]he  Ombudsman  shall  examine  in  a 
timely manner whether the Union institutions, bodies, offices and agencies adequately 
handle harassment cases of any kind and nature by correctly applying the procedures 
provided for in connection with complaints in that field. The Ombudsman shall draw 
up appropriate conclusions on the subject’; 

Article  14,  third  paragraph,  provides  that:  ‘[t]he  Ombudsman  shall  within  the 
secretariat appoint a person or structure with expertise in the field of harassment able 
to  assess  in  a  timely  manner  whether  harassment  cases  of  any  kind  and  nature, 
including  sexual  harassment,  are  handled  adequately  within  the  Union  institutions, 
bodies,  offices  and  agencies  and,  where  appropriate,  to  provide  advice  to  their 
officials and other servants.’ 

The Commission does not agree with these proposals for the following reasons: 

(1)  The Ombudsman already has some of the envisaged powers:  

– 

The Ombudsman can already conduct inquiries on the basis of complaints 
or  on  its  own  initiative.  This  is  sufficient  to  deal  with  cases  of 
maladministration in relation to any field, including harassment. There is 
thus  no  need  to  introduce  explicit  provisions  on  harassment  in  the 
Ombudsman’s  Statute.  Moreover,  there  is  no  legal  basis  to  introduce 
specific  provisions  on  harassment  in  the  Ombudsman’s  Statute,  since 
neither  Article  228  TFEU  nor  the  EU  Staff  Regulations  (Article  12a) 
provide  for  a  specific  power  of  the  Ombudsman  in  this  regard.  Had  the 
legislator  wished  to  give  such  powers  to  the  Ombudsman,  it  would  have 
included them in the Staff Regulations. 

(2)  Provisions  on  harassment  and  its  consequences  already  exist  in  the  Staff 
Regulations, and both the Staff Regulations and  the relevant case-law defining 
the concept must be taken into account: 

– 

The  text  envisages  assessment  of  the  ‘mechanisms  to  penalise  those 
responsible  for  harassment’.  Pursuant  to  Article  86  of  the  Staff 
Regulations,  those  matters  are  dealt  with  by  means  of  disciplinary 

3 

 
proceedings  conducted  in  accordance  with  Annex  IX  to  the  Staff 
Regulations.  Since  institutions  are  bound  to  follow  the  procedures  in  the 
Staff Regulations, it is not clear what the Ombudsman’s assessment would 
focus  on.  Even  if  the  Ombudsman  concluded  that  the  mechanisms  were 
inadequate, this would not constitute maladministration, as the institutions 
would merely be complying with a legislative act. 

– 

The proposal does not take account of the legal issues linked with Article 
12  of  the  Staff  Regulations,  in  particular  the  abundant  case-law  on  the 
definition  of  harassment.  Findings  of  harassment  have  significant 
consequences for the complainant and the alleged harasser. They must be 
embodied 
review;  a 
recommendation  cannot  be  subject  to  legal  review  and  is  not  legally 
enforceable. 

in  a  decision 

is  subject 

judicial 

that 

to 

(3)  Given the existing provisions, there is a risk of duplication and side effects:  

– 

– 

In the Commission, provided there is a prima facie evidence (‘beginning 
of  proof’),  the  Investigations  and  Disciplinary  Office  of  the  Commission 
(IDOC)  can  launch  an  administrative  inquiry  into  the  allegations  of 
harassment. The other institutions have similar procedures. As it currently 
stands, the provision does  not rule out  duplication  of work, especially as 
the proposed Article 2(8) does not require that a request or complaint be 
made  under  the  Staff  Regulations.  The  proposal  would  thus  lead  to 
duplication of existing structures in the institutions (see, in particular, the 
Commission’s  manual  of  procedures  and  the  role  of  ‘confidential 
counsellors’). The Executive Agencies also refer, through a Service-Level 
Agreement  between  them  and  the  Directorate-General  for  Human 
Resources any harassment case to the IDOC. 

In addition, the proposed amendment could have a negative side effect by 
cutting  staff  members’  access  to  legal  remedies  under  the  Staff 
Regulations. If they opted for a complaint to the Ombudsman, they would 
not  be  able  to  go  to  the  Court  pursuant  to  Article  91(2)  of  the  Staff 
Regulations. Indeed, Article 270 TFEU provides that ‘the Court of Justice 
of the European Union shall have jurisdiction in any dispute between the 
Union  and  its  servants  within  the  limits  and  under  the  conditions  laid 
down  in  the  Staff  Regulations  of  Officials  and  the  Conditions  of 
Employment of other servants of the Union’. 

(4)  Some of these provisions do not fall within the Ombudsman’s remit: 

– 

Article  228(1)  TFEU  provides  that  the  Ombudsman’s  mandate  is  to 
investigate possible ‘instances of maladministration in the activities of the 
Union institutions, bodies, offices or agencies’. If an institution has acted 
(or  failed  to  act)  in  violation  of  applicable  administrative  rules,  this  may 
constitute  maladministration  and  hence  fall  within  the  Ombudsman’s 
mandate. However, this is the case only if the alleged facts are imputable 
to  an  institution,  either  because  it  has  acted  in  such  a  way  that  caused 
those circumstances to come about or because it failed to act on the matter. 
This corresponds to the current Article 2(4) of the Ombudsman’s Statute, 
the  text  of  which  remains  the  same  on  that  aspect  in  the  proposal  and 
provides  that,  before  turning  to  the  Ombudsman,  citizens  must  have 
contacted  the  institutions  on  the  same  issue  and  have  either  received  a 

4 

 
– 

– 

– 

reply  with  which  they  disagree  or  not  received  any  reply  within  a 
reasonable time-period.  

The  Ombudsman’s  mandate  does  not  include  a  permanent  assessment  of 
policies  and  procedures  in  general.  The  Ombudsman  is  not  a  body  for 
permanent  scrutiny  or  oversight  of  a  specific  activity  of  the  institutions. 
The  Ombudsman  has  horizontal  competences  across  all  fields  where 
instances of maladministration are identified.  

is 

law 

like  harassment, 

The  Ombudsman’s  mandate  and  role  as  laid  down  in  Article  228(1) 
TFEU, which is  a  general  mandate and not  a  mandate specific to  certain 
areas  of 
instances  of 
maladministration and hence to examine complaints and conduct inquiries, 
not  to  provide  advice  to  staff  members  of  other  institutions.  Providing 
advice  on  a  specific  case  would  hamper  the  Ombudsman’s  impartiality 
and  capacity  to  maintain  an  unbiased  view  of  the  situation:  if  the 
Ombudsman  had  given  advice  to  a  staff  member  in  a  case  that  is 
subsequently  referred  to  the  Ombudsman  by  means  of  a  complaint,  the 
Ombudsman could be faced with a conflict of interest. 

investigate 

to 

The proposal would raise expectations that the Ombudsman would not be 
able  to  fulfil,  since  effective  action  can  be  taken  only  by  the  institution 
within  the  procedures  established  by  the  Staff  Regulations  providing  for 
the rights and obligations of staff members. 

(5)  There is an overall problem of method and process: 

– 

– 

It is difficult to see how the Ombudsman could be aware of all harassment 
cases  if  they  are  not  brought  to  the  Ombudsman’s  attention  via  a 
complaint.  As  it  currently  stands,  the  provision  seems  to  imply  that  the 
Ombudsman should review (possibly on its own initiative) all harassment 
cases (i.e. not just sexual harassment cases) handled by any EU institution, 
in a ‘timely manner’. 

The  Ombudsman  should  always  make  recommendations  on  the  basis  of 
inquiries  after  having  given  the  institution  the  opportunity  to  submit 
observations.  Recommendations  or  conclusions  outside  those  procedures 
would  neglect  the  right  of  the  institution  to  make  its  views  known  and 
would be based on incomplete information. 

(6)  Some other provisions are unclear: 

– 

– 

– 

does  Article  14,  second  paragraph,  refer  to  all  cases  or  only  to  those 
handled by the institutions?  

what is meant by ‘conclusions’ (Article 14, first paragraph)? 

what  is  meant  by  the  principles  of  ‘adequacy’  and,  especially,  of 
‘energetic action’ (Article 14, first paragraph)? 

NEW PROVISIONS ON SEXUAL HARASSMENT CASES 

 

Article  2(8)  provides  that  ‘[w]ith  the  exception  of  complaints  relating  to  sexual 
harassment cases, no complaint may be made to the Ombudsman that concerns work 
relationships  between  the  Union  institutions,  bodies,  offices  and  agencies  and  their 
officials  and  other  servants  unless  all  the  possibilities  for  the  submission  of  internal 

5 

 
 

administrative  requests  and  complaints,  in  particular  the  procedures  referred  to  in 
Article  90  of  the  Staff  Regulations  of  Officials  of  the  European  Union  and  the 
Conditions  of  Employment  of  Other  Servants  of  the  Union,  laid  down  in  Council 
Regulation  (EEC,  Euratom,  ECSC)  No  259/682  (‘the  Staff  Regulations’),  have  been 
exhausted  by  the  person  concerned  and  the  time-limits  for  replies  by  the  institution, 
body, office or agency concerned have expired.’ 

As indicated above, Article 14, third paragraph, provides that ‘[t]he Ombudsman shall 
within  the  secretariat  appoint  a  person  or  designate  a  structure  with  expertise  in  the 
field of harassment able to assess in a timely manner whether harassment cases of any 
kind  and  nature,  including  sexual  harassment,  are  handled  adequately  within  the 
Union  institutions,  bodies,  offices  and  agencies  and,  where  appropriate,  to  provide 
advice to their officials and other servants.’ 

The Commission does not agree with these proposals and recommends the deletion 
of  ‘with  the  exception  of  complaints  relating  to  sexual  harassment  cases’  from 
Article 2(8) for the reasons listed below: 

Whilst  the  above  comments  related  to  harassment  cases  also  apply  to  sexual 
harassment, the  Commission  has  specific  concerns  about  distinguishing  that  form  of 
harassment as proposed in the draft Regulation:  

(1)  The  proposed  Regulation  (in  particular  Article  2(8))  attempts  to  extend  the 
Ombudsman’s  mandate  beyond  the  remit  enshrined  in  the  Treaties.  In  sexual 
harassment  cases,  were  these  new  provisions  to  be  adopted,  staff  members 
would no longer need to make a request under Article 24 or 90(1) of the Staff 
Regulations,  or  lodge  a  complaint  pursuant  to  Article  90(2),  before  turning  to 
the  Ombudsman,  which  is  the  current  procedure.  However,  it  is  obvious  that, 
should  the  complainant  not  first  have  to  exhaust  the  internal  procedures,  the 
relevant institution could not be held responsible for failing to adopt appropriate 
measures, as it would not have had a chance to address the situation. Until the 
institution has been made aware of the situation and failed to address it, sexual 
harassment is attributable only to the staff member in question. The institution 
cannot  be  responsible  for  failing  to  act  unless  it  has  been  informed  of  the 
situation and given the opportunity to address it. 

(2) 

In the context of a sexual harassment complaint, as in all other cases referred to 
in  draft  Article  2(8),  the  institution  should  have  the  opportunity  to  assess  the 
case  before  any  potential  referral  to  the  Ombudsman.  As  reflected  in  recital  2 
and  Article  2(1)  of  the  proposal,  the  Ombudsman’s  role  is  to  help  uncover 
maladministration in the activities of the Union institutions, bodies, offices and 
agencies. Accordingly, the institutions should be able to assess and deal with the 
case,  including  a  sexual  harassment  case,  before  the  Ombudsman  examines 
whether it has dealt with it appropriately and whether there is maladministration. 

(3)  The proposal does not take into account the existence of a wide range of tools in 
the  Staff  Regulations  and  of  other  measures  adopted  by  the  institutions  in  this 
framework,  e.g.  actions  by  the  Commission’s  Directorate-General  for  Human 
Resources  to  combat  sexual  harassment  (for  example,  Commission  Decision 
C(2006)1624/3 of 26 April 2006). 

2  OJ L 56, 4.3.1968, p. 1. 

6 

 
                                                 
(4)  While  the  differences  between  moral  and  sexual  harassment  are  obvious,  it  is 
not  appropriate  to  distinguish  between  them  in  this  context.  Article  12  of  the 
Staff Regulations does not provide for such distinction with regard to the rights 
and  obligations  of  staff  since  both  forms  of  harassment  can  be  extremely 
harmful. 

(5)  The  points  on  harassment  cases  (previous  section)  also  apply  to  sexual 

harassment cases, particularly as regards:  

(1) 

the need to reflect the abundant case-law on the definition of harassment 
(point 2);  

(2)  duplication of existing structures (point 3); 

(3) 

(4) 

advice to staff members (point 4, second indent); 

raising expectations (point 4, third indent).  

 

Article 17 provides that: ‘the Ombudsman shall adopt the implementing provisions for 
this Regulation. These shall be in accordance with this Regulation and include at least 
provisions on: (a) procedural rights of the complainant and the institution, body, office 
or  agency  concerned;  (b)  ensuring  the  protection  of  officials  or  other  servants 
reporting  cases  of  sexual  harassment  and  of  breaches  of  Union  law  within  the 
institutions, bodies, offices or agencies of the Union, in accordance with Article 22a of 
the Staff Regulations (‘whistleblowing’); [..].’ 

The Commission does not agree with this proposal for the following reasons: 

(1)  Subparagraph  b)  should  be  deleted  since  the  Ombudsman  has  no  specific 
competence on sexual  harassment and the administrative procedures  should  be 
exhausted beforehand. 

(2)  As  regards  the  additional  procedural  safeguards  in  the  context  of  sexual 
harassment  complaints,  the  Staff  Regulations  do  not  distinguish  between 
different  types  of  harassment.  Therefore,  the  same  safeguards  should  be 
afforded to staff members making allegations of any type of harassment, and not 
just sexual harassment. 

NEW PROVISIONS ON WHISTLEBLOWING 

 

Article  5,  first  paragraph,  first  sentence,  provides  that:  ‘[t]he  Ombudsman  shall 
conduct regular assessments of the policies and reviews of the procedures in place in 
the relevant Union institutions, bodies and agencies in accordance with Article 22 of 
the Staff Regulations (‘whistleblowing’) and shall, where appropriate, make concrete 
recommendations for improvement with a view to ensuring full protection for officials 
and  other  servants  reporting  facts  in  accordance  with  Article  22a  of  the  Staff 
Regulations.’ 

The Commission does not agree with this proposal for the following reason: 

The  Ombudsman  is  not  a  body  for  permanent  and  regular  scrutiny  or  oversight  of 
specific activities of other institutions. The Ombudsman may deal with these issues on 
the basis of complaints or on the basis of its powers to launch own-initiative inquiries, 
but only in the context of possible instances of maladministration. The Ombudsman’s 
mandate does not include the assessment of policies and procedures in general.  

7 

 
 

Article 5, first paragraph second sentence, of the draft Regulation provides that: ‘[t]he 
Ombudsman may, upon request, provide in confidence information, impartial advice 
and expert guidance to officials or other servants on the proper conduct to take in the 
presence of facts referred to in Article 22a of the Staff Regulations, including on the 
scope of the relevant provisions of Union’s law’; 

and  Article  5,  second  indent,  provides  that  ‘[t]he  Ombudsman  may  also  open 
inquiries  based  on  the  information  provided  by  officials  or  other  servants  reporting 
facts  in  accordance  with  Article  22a  of  the  Staff  Regulations,  who  may  report  in 
facts  described  could  constitute 
confidence  and  anonymously,  where 
maladministration in a Union institution, body, office and agency. In  order to enable 
this purpose, applicable staff regulations regarding secrecy may be waived.’ 

the 

The Commission does not agree with these proposals for the following reasons: 

(1)  The Ombudsman’s mandate is to investigate instances of maladministration, not 
to provide advice to staff members of the institutions, let alone in a confidential 
way.  Providing  advice  on  a  specific  case  will  hamper  the  Ombudsman’s 
impartiality  and  capacity  to  maintain  an  unbiased  view  of  the  situation:  if  the 
Ombudsman has given advice to a staff member on a matter that later becomes 
the subject of an inquiry by the Ombudsman, it could be faced with a conflict of 
interest. 

(2)  The reference made to Article 22a of the Staff Regulations is not in line with the 
Treaties.  The  Staff  Regulations  set  out  a  comprehensive  system  for 
whistleblowing  and  officials’  duty  to  inform  their  institution  or  OLAF.  The 
Ombudsman’s Statute is based on Article 228 TFEU and cannot change rights 
and  obligations  of  staff,  which  are  established  through  a  different  legislative 
procedure  based  on  Article  336  TFEU.  Article  22b  of  the  Staff  Regulations 
provides  that  a  staff  member  may  inform  the  Ombudsman  only  after  having 
informed  one  of  the  persons  or  bodies  listed  in  Article  22a.  Thus,  in  order  to 
maintain  consistency  and  legal  certainty,  reference  should  be  made  only  to 
Article 22b, so that staff members can be in no doubt as to the procedure to be 
followed. 

(3)  The reference to the waiving of professional secrecy should be deleted. If a staff 
member  turns  to  the  Ombudsman  pursuant  to  Article  22b  of  the  Staff 
Regulations, there is no need to ask for his/her duty of professional secrecy to be 
waived. With regard to other staff members, an inquiry launched on the basis of 
a complaint by a staff member pursuant to Article 22b of the Staff Regulations 
should  follow  the  same  rules  and  procedures  as  any  other  Ombudsman’s 
inquiry. There is no need for a specific provision. 

As mentioned above, the Commission does not agree with Article 17 (a) and (b) of the 
draft Regulation insofar as it also encompasses whistleblowing (see reasons above). 

EXPLICIT REFERENCE TO STRATEGIC INQUIRIES 

Article 3(2) provides that ‘[w]ithout prejudice to the primary duty of the Ombudsman, which is 
to handle complaints, the Ombudsman may conduct own-initiative inquiries of a more strategic 
nature  in  order  to  identify  repeated  or  particularly  serious  instances  of  maladministration,  to 
promote  best  administrative  practices  within  the  Union  institutions,  bodies,  offices  and 
agencies  and  to  proactively  address  structural  issues  of  public  interest  falling  within  the 
Ombudsman’s remit’ (see also recital 7) 

8 

 
The  Commission  agrees  with  these  proposals  as  long  as  the  Ombudsman  acts  within  the 
limits of its mandate, i.e. maladministration. 

STRUCTURED DIALOGUE AND PUBLIC CONSULTATIONS 

Article  3(3)  provides  that  ‘[t]he  Ombudsman  may  engage  in  structured  and  regular  dialogue 
with  the  Union  institutions,  bodies,  offices  and  agencies  and  organise  public  consultations 
before  providing  recommendations  or  at  any  stage  thereafter.  The  Ombudsman  may  as  well 
systematically  analyse  and  assess  the  progress  of  the  institution  body,  office  or  agency 
concerned, and issue further recommendations’.’ 

The Commission agrees in part with this proposal: 

(1) 

(2) 

On  the  ‘structured  and  regular  dialogue’,  the  Commission  agrees  on  the  principle, 
bearing  in  mind  that  this  already  takes  place.  The  Ombudsman  stressed  in  her  2018 
annual  report  that  she  was  ‘grateful  to  the  EU  institutions,  agencies  and  bodies  for 
their  cooperation  in  [this]  work’3  and  regularly  welcomed  the  Commission’s 
responses. In 2017, the Commission complied with 76% of the Ombudsman’s solution 
proposals, recommendations, and suggestions. That said, the dialogue would have to 
take place within a commonly agreed and workable framework. 

On  the  matter  of  the  Ombudsman  organising  public  consultations  ‘before  providing 
recommendations or at any stage thereafter’, the Commission can partly agree. It has 
no  objection  on  the  principle.  The  Ombudsman  may  be  able  to  organise  public 
consultations  and  has  the  flexibility  to  do  so  where  relevant,  as  is  already  the  case. 
That said, the Ombudsman is not a decision-maker, so the role of such consultations 
‘before providing recommendations’ and even ‘at any stage thereafter’ is unclear and 
might  raise  public  expectations  as  to  the  Ombudsman’s  capacity  to  initiate  new 
policies or modify existing ones. In preparing its recommendations, the Ombudsman 
has  full  autonomy  to  assess  whether  EU  institutions  and  bodies  act  according  to  the 
principles  of  good  administration.  It  may  be  useful  to  draw  up  specific  criteria  for 
cases  where  public  consultations  are  expected  and  for  what  purpose.  In  addition,  it 
must  be  clear  that  public  consultations  should  be  strictly  excluded  in  the  context  of 
individual cases, particularly for reasons of data protection. 

(3) 

The Commission suggests that the word ‘systematically’ be deleted. The term ‘may’ 
already gives the Ombudsman the necessary flexibility to assess progress where it so 
wishes. 

NEW PROVISIONS ON ACCESS TO DOCUMENTS 

 

Article 3(4) provides that ‘[t]he Union institutions, bodies, offices and agencies shall 
supply  the  Ombudsman  with  any  information  the  Ombudsman  has  requested  from 
them  and  provide  the  Ombudsman  with  access  to  the  files  concerned.  Access  to 
classified information or documents shall be subject to compliance with the rules on 
the  processing  of  confidential  information  by  the  Union  institution,  body,  office  or 
agency concerned. 

The  institutions,  bodies,  offices  or  agencies  supplying  classified  information  or 
documents in accordance with the first subparagraph shall inform the Ombudsman of 
such classification in advance. 

3 

https://www.ombudsman.europa.eu/en/annual/en/113728 

9 

 
                                                 
For  the  implementation  of  the  rules  provided  for  in  the  first  subparagraph,  the 
Ombudsman shall have agreed in advance with the institution, body, office or agency 
concerned the conditions for treatment of classified information or documents. 

The institutions, bodies, offices or agencies concerned shall give access to documents 
originating  in  a  Member  State  and  classified  as  secret  by  law  only  after  the 
Ombudsman’s  services  have  put  in  place  appropriate  measures  and  safeguards  for 
handling the documents that ensure an equivalent level of confidentiality, in line with 
Article  9  of  Regulation  (EC)  No  1049/2001  and  in  compliance  with  the  rules  on 
security of the Union institution, body, office or agency concerned.’ (See also recital 
9) 

The Commission does not agree with this proposal for the following reasons: 

First,  the  (new)  last  paragraph  of  this  provision  is  unclear  and  only  refers  to  some 
parts  of  Article  9  of  Regulation  (EC)  No  1049/2001.  Indeed,  although  this  new 
paragraph refers to ‘access to documents originating in a Member State and classified 
as secret’, it seems to omit several parts of Article 9, which provides that: ‘[s]ensitive 
documents are documents originating from the institutions or the agencies established 
by  them,  from  Member  States,  third  countries  or  International  Organisations, 
classified  as  ‘TRÈS  SECRET/TOP  SECRET’,  ‘SECRET’  or  ‘CONFIDENTIEL’  in 
accordance with the rules of the institution concerned, which protect essential interests 
of the European Union or of one or more of its Member States in the areas covered by 
Article 4(1)(a), notably public security, defence and military matters’. 

Second, such measures should apply to the handling of all classified documents. It is 
thus  not  clear  why  this  provision  refers  to  arrangements  to  be  put  in  place  only  for 
secret  documents.  Article  9(3)  of  Regulation  (EC)  No  1049/2001  provides  that 
‘[s]ensitive  documents  shall  be  recorded  in  the  register  or  released  only  with  the 
consent of the originator’. It is not clear why only the Member States are mentioned 
and  other  originators,  e.g.  non-EU  countries  and  international  organisations,  are 
excluded. 

Finally, it is not clear if the provision refers to public access to such documents or to 
their transmission to the Ombudsman. 

The  Commission  proposes  the  following  alternative  text  to  the  first  paragraph  of 
Article 3(4): 

‘The  institutions,  bodies,  offices  or  agencies  concerned  shall  transmit  to  the 
Ombudsman  classified  documents  originating  from  them  or  from  Member  States, 
third  countries  or  international  organisations  only  after  the  Ombudsman’s  services 
have  put  in  place  appropriate  measures  and  safeguards  for  handling  classified 
documents, in line with Article 9 of Regulation (EC) No 1049/2001 and in compliance 
with the rules on security of the Union institution, body, office or agency concerned.’  

 

Furthermore,  the  Commission  suggests  integrating  the  current  Article  4(8)  of  the 
Ombudsman’s Implementing Provisions directly into the text of the Statute at the end 
of  the  second  paragraph  of  Article  3(4),  in  order  to  ensure  proper  identification  and 
handling of confidential information. 

The Commission proposes the following text: 

‘When  an  institution  or  a  Member  State  provides  information  or  documents  to  the 
Ombudsman,  they  shall  clearly  identify  any  information  they  consider  to  be 

10 

 
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.’ 

 

Article 4 provides that ‘[t]he Ombudsman and the Ombudsman’s staff shall deal with 
requests for public access to documents, other than those referred to in Article 6(1), in 
accordance  with  the  conditions  and  limits  provided  for  in  Regulation  (EC)  No 
1049/2001. 

With regard to complaints on the right of public access to official documents drawn up 
or received by a Union institution, body, office or agency, the Ombudsman shall, after 
due analysis and all necessary consideration, issue a recommendation concerning the 
access  to  those  documents.  The  institution,  body,  office  or  agency  concerned  shall 
respond  within  the  timeframes  provided  by  Regulation  (EC)  No  1049/2001.  If  the 
institution, body, office or agency concerned does not follow a recommendation from 
the  Ombudsman  to  give  access  to  documents,  it  shall  duly  state  the  reasons  for  its 
refusal. In such a case, the Ombudsman shall inform the complainant about the legal 
remedies available, including the procedures available to refer the case to the Court of 
Justice of the European Union.’ 

The Commission does not agree with this proposal for the following reasons: 

(1)  As regards the procedure: 

– 

– 

the  institution  concerned  would  have  to  respond  to  the  Ombudsman’s 
recommendation. However, an Ombudsman’s recommendation is not and 
cannot be equivalent to, or treated as, a new request for access; 

in  addition,  it  appears  that,  if  the  institution  refuses  to  follow  the 
recommendation,  it  would  be  obliged  to  adopt  a  decision,  which  could 
give the applicant a new opportunity to bring a case before the EU courts. 
This is not compatible with the second paragraph of Article 228(1) TFEU 
(‘Where the Ombudsman establishes an instance of maladministration, he 
shall refer the matter to the institution, body, office or agency concerned, 
which  shall  have  a  period  of  three months  in  which  to  inform  him  of  its 
views.  The  Ombudsman  shall  then  forward  a  report  to  the  European 
Parliament  and  the  institution,  body,  office  or  agency  concerned.  The 
person  lodging  the  complaint  shall  be  informed  of  the  outcome  of  such 
inquiries’).  It  is  also  not  in  line  with  Article  2(6)  of  the  Ombudsman’s 
Statute,  under  which  a  complaint  submitted  to  the  Ombudsman  does  not 
affect the time limits for appeals in judicial proceedings. 

(2)  As regards the substance: 

– 

– 

the proposal provides that ‘with regard to complaints on the right of public 
access to official documents drawn up or received by a Union institution 
[..], 
the  Ombudsman  shall,  after  due  analysis  and  all  necessary 
consideration,  issue  a  recommendation  concerning  the  access  to  those 
documents’. It is unclear whether this means that: 

where the Commission is not unable to process a request within the legal 
deadlines,  the  Ombudsman  is  to  issue  a  recommendation  on  that 
procedural irregularity exclusively; or  

11 

 
– 

– 

the Ombudsman will be allowed to make its own assessment on the merits 
of  the  request  for  access  while  the  Commission  is  still  assessing  the 
confirmatory application.  

Interpretation (b) would not be acceptable – until a confirmatory decision 
has been adopted, there can be no maladministration on the substance;  

the proposal provides for the Ombudsman to inform the complainant about 
the  ‘legal  remedies,  including  court  actions’  where  the  institution  ‘does 
not  follow  a  recommendation’.  This  would  render  recommendations 
compulsory  and  generate  new  deadlines  for  introducing  court  actions, 
which is not possible given that, as indicated above, the Ombudsman gives 
the  citizen  an  alternative  remedy  to  that  of  a  Union  court,  and  both 
remedies cannot be pursued at the same time.  

The Commission proposes the following alternative text to Article 4: 

‘The  Ombudsman  and  the  Ombudsman’s  staff  shall  deal  with  requests  for  public 
access to documents, other than those referred to in Article 6(1), in accordance with 
the  conditions  and  limits  provided  for  in  Regulation  (EC)  No  1049/2001,  as 
complemented  by  Regulation  (EC)  No  1367/2006  as  far  as  access  to  environmental 
information is concerned.4 

With regard to complaints on the right of public access to official documents drawn up 
or received by a Union institution, body, office or agency, the Ombudsman shall, after 
due analysis and all necessary consideration, conclude if there is reason to assume an 
instance of maladministration or not. In case no such reason exists, it shall close the 
file and inform the institution, body, office or agency accordingly. In case of reason to 
assume an instance of maladministration, it shall inform the institution, body, office or 
agency concerned of the findings supporting a suspicion of maladministration, giving 
the institution the possibility to comment on them. If, after taking into consideration 
any  comments  of  the  institution,  body,  office  or  agency  concerned  the  Ombudsman 
finds that there has been maladministration, it shall inform the institution, body, office 
or agency concerned, and where appropriate, issue a recommendation. The institution, 
body, office or agency so informed shall send the Ombudsman a detailed opinion in 
three months.’ 

The  reasoning  behind  this  alternative  proposal  is  that  the  Ombudsman  should  not 
conclude that there is maladministration without giving the institution the opportunity 
to comment on its findings. 

The sentence ‘[t]he institution, body, office or agency concerned shall respond within 
the timeframes provided by Regulation (EC) No 1049/2001’ should be deleted. Those 
timeframes  apply  only  regarding  the  replies  to  the  applicant.  There  is  no  legal  basis 
for  extending  them  to  the  institution’s  reply  to  the  Ombudsman.  In  addition,  they 
appear  to  be  disproportionate  and  unbalanced.  Before  replying  to  the  Ombudsman, 
following its recommendation, the institution has to analyse it. The Ombudsman, by 
contrast,  would  not  be  bound  by  any  timeframe  and  would  issue  a  recommendation 
only ‘after due analysis and all necessary consideration’. 

4  Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the 
application  of  the  provisions  of  the  Aarhus  Convention  on  Access  to  Environmental  Information,  Public 
Participation in Decision-making and Access to justice in Environmental Matters to Community institutions 
and bodies, OJ L 264, 25.9.2006, p. 13). 

12 

 
                                                 
It  is  important  to  add  requests  for  access  to  environmental  information  envisaged  in 
the first pillar of the Aarhus Convention and introduced into EU legal order through 
Regulation (EC) No 1367/2006. The notion of environmental information is laid down 
in  Article  2.1  (d).  Even  if  in  its  Article  3  Regulation  No  1367/2006  establishes  that 
Regulation  (EC)  No  1049/2001  apply  to  any  request  for  environmental  information, 
rules are not totally identical due to inter alia Article 6. Therefore, it is necessary to 
add it to the reference of Regulation No. 1049/2001. 

 

Lastly,  the  Commission  suggests  integrating  the  current  Article  9(4)  of  the 
Ombudsman’s Implementing Provisions directly into the text of the Statute at the end 
of  the  fourth  paragraph  of  Article  3(4),  in  order  to  specify  the  process  linked  to  the 
retention of information by the Ombudsman. 

The Commission proposes the following text: 

‘The  Ombudsman shall retain possession of documents  obtained from an institution, 
body,  office  or  agency,  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.  The  Ombudsman  may  request  an  institution,  body,  office  or  agency,  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.’ 

EXTENSION  OF  THE  SCOPE  OF  TESTIMONIES  OF  EU  OFFICIALS  AND  OTHER 
SERVANTS 

Article 3(4) last paragraph, provides that ‘[o]fficials and other servants of Union institutions, 
bodies,  offices  and  agencies  shall,  at  the  request  of  the  Ombudsman,  testify  to  facts  which 
relate to an ongoing inquiry by the Ombudsman. They shall speak on behalf of their institution, 
body,  office  or  agency.  They  shall  continue  to  be  bound  by  the  obligations  arising  from  the 
rules to  which they are subject. When they are bound by a duty  of professional secrecy,  this 
shall  not  be  interpreted  as  covering  information  relevant  for  complaints  or  inquiries  on 
harassment or maladministration.’ 

The Commission does not agree with this proposal for the following reasons: 

(1) 

The  legal  framework  to  disclosure  of  information  by  staff  members  to  the 
Ombudsman needs to be clarified:  

The proposed provision refers to ‘testimony’ to be given by staff members of Union 
institutions,  bodies,  offices  or  agencies  to  the  Ombudsman.  In  that  regard,  it  is 
important to recall that Article 19 of the Staff Regulations, which provides that  staff 
members  may  give  evidence  subject  to  the  prior  formal  authorisation  of  their 
appointing authority, concerns only disclosures during judicial proceedings. Since an 
Ombudsman inquiry is not a legal proceeding, Article 19 cannot apply to a testimony 
given to the Ombudsman. 

Accordingly, the ‘testimony’ to which the proposed provision refers should be labeled 
‘disclosure of information’, which falls within the scope of Article 17(1) of the Staff 
Regulations.  In  accordance  with  the  latter,  ‘[a]n  official  shall  refrain  from  any 
unauthorised  disclosure  of  information  received  in  the  line  of  duty,  unless  that 
information  has  already  been  made  public  or  is  accessible  to  the  public’.  Hence, 
before  disclosing  information,  including  as  a  testimony  to  the  Ombudsman,  staff 
members must have the agreement of their hierarchical superiors. 

13 

 
(2) 

The  fact  that  staff  members  cannot  be  called  to  testify  in  individual  capacity 
needs to be clarified: 

By  referring  to  the  staff  members’  obligation  to  ‘testify  to  facts  which  relate  to  an 
ongoing inquiry’, the current wording of the proposed provision gives the impression 
that staff members can be obliged to testify before the Ombudsman in their individual 
capacity,  providing  the  Ombudsman  with  their  version  of  events.  However,  it  goes 
beyond the mandate of the Ombudsman to ask for individual testimonies. In fact, the 
Ombudsman  deals  with  maladministration  by  institutions  and  has  no  power  to  do 
individual  fact-finding,  especially  in  cases  of  harassment.  Only  the  institution 
responsible  and,  if  necessary,  the  CJEU  are  tasked  with  hearing  witnesses  and 
determining the facts. 

The  second  sentence  of  the  proposed  provision  already  states  that  staff  members 
would  ‘speak  on  behalf  of  their  institution,  body,  office  or  agency’.  To  avoid  any 
ambiguity,  any  reference  to  ‘testimony  to  the  facts’  by  a  staff  member  should  be 
deleted. 

(3) 

The duty of professional secrecy should always apply: 

The  last  sentence  of  the  proposed  provision  suggests  that  the  duty  of  professional 
secrecy laid down in Article 17(1) of the Staff Regulations does not apply to instances 
in which staff members are heard by the Ombudsman within the context of an inquiry. 
This sentence should be deleted, since Article 17(1) of the Staff Regulations applies to 
all  circumstances,  including  when  staff  members  disclose  information  during  an 
Ombudsman inquiry. In fact, the only exceptions  laid down in the Staff Regulations 
concern  instances  in  which  staff  members  disclose  information  during  legal 
proceedings (Article 19) or as a whistle-blower (Articles 22a and 22b). 

NEW PROVISION ON CONFLICTS OF INTEREST 

Article 3(5) provides that ‘[t]he Ombudsman shall periodically examine the procedures linked 
to the administrative action of Union institutions, bodies, offices and agencies and shall assess 
whether they are able effectively to prevent conflicts of interest, to guarantee impartiality and 
to ensure full respect for the right to good administration. The Ombudsman may identify and 
assess possible instances of conflicts of interest at all levels which could constitute a source of 
maladministration,  in  which  case  the  Ombudsman  shall  draw  up  specific  conclusions  and 
inform the European Parliament of the findings on the subject.’ 

The Commission does not agree with this proposal for the following reasons: 

(1) 

(2) 

The  Ombudsman  is  not  a  body  for  permanent  scrutiny  or  oversight  of  specific 
activities  or  areas  of  activities  of  other  institutions.  The  Ombudsman  may  deal  with 
these  issues  on  the  basis  of  its  powers  to  investigate  complaints  or  to  launch  own-
initiative inquiries, but only in the context of possible instances of maladministration. 
The mandate of the Ombudsman does not cover assessment of policies and procedures 
in general.   

The Commission considers the word ‘conclusions’ to be unclear. It seems to give the 
Ombudsman  the  power  to  draw  conclusions  other  than  in  the  context  of  an  inquiry, 
meaning for example that the institution would not be able to submit its views. This is 
not compatible with the second indent of Article 228(1) TFEU. 

14 

 
SPECIAL REPORTS TO THE EUROPEAN PARLIAMENT 

Article 3(9) provides that ‘[t]he Ombudsman shall then send a report to the institution, body, 
office  or  agency  concerned  and,  notably  where  the  nature  or  the  scale  of  the  instance  of 
maladministration  uncovered  so  requires,  to  the  European  Parliament.  The  Ombudsman  may 
make recommendations in the report. The complainant shall be informed by the Ombudsman 
of  the  outcome  of  the  inquiry,  of  the  opinion  expressed  by  the  institution,  body,  office  or 
agency concerned and of any recommendations made in the report by the Ombudsman.’ 

The Commission agrees with this proposal for the following reasons: 

The Ombudsman always had the right to submit ‘special reports’ to the European Parliament, 
in addition to annual reports on its activities. It issues special reports only in very exceptional 
and  sensitive  cases,  where  the  Ombudsman  finds  that  the  scale  of  maladministration  is 
particularly serious. On average, the Ombudsman has submitted one special report a year. The 
last one concerning the Commission was in 2012 and concerned the expansion of the Vienna 
airport.  The  proposed  wording  is  better  than  the  current  text,  notably  as  it  provides  for 
examples  where  the  sending  of  special  reports  are  necessary  and  thus  makes  this  provision 
more likely to be respected. 

EXTENSION OF POSSIBILITIES TO APPEAR BEFORE THE EUROPEAN PARLIAMENT 

Article 3(10) provides that ‘[w]here appropriate in relation to an inquiry into the activities of a 
Union  institution,  body,  office  or  agency,  the  Ombudsman  may  appear  before  the  European 
Parliament, on the Ombudsman's own initiative or at the request of the European Parliament, at 
the most appropriate level’. 

The  Commission  has  no  objection  to  this  proposal,  and  would  point  out  that  it  is  for  the 
European Parliament to address how and when the Ombudsman can appear before it.  

NEW PROCEDURE FOR PROPOSING SOLUTION 

Article 3(11) provides that ‘[a]s far as possible, the Ombudsman shall seek a solution with the 
institution, body, office or agency concerned to eliminate the instance of maladministration and 
satisfy the complaint. The Ombudsman shall inform the complainant of the solution proposed 
along  with  the  comments,  if  any,  of  the  institution,  body,  office  or  agency  concerned.  If  the 
complainant  so  wishes,  the  complainant  shall  be  entitled  to  submit  comments,  or  additional 
information that was not known at the time of submission of the complaint, to the Ombudsman, 
at any stage.’  

The Commission agrees with this proposal for the following reasons: 

It is already possible to propose solutions to address instances of maladministration, instead of 
adopting  formal  decisions,  in  particular  following  the  entry  into  force  in  2016  of  the  new 
Implementing Provisions of the Ombudsman’s Statute. This is in the interest of all concerned. 

CONTENT OF THE OMBUDSMAN’S ANNUAL REPORT 

Article 3(12) provides that ‘[a]t the end of each annual session the Ombudsman shall submit to 
the European Parliament a report on the outcome of the inquiries that the Ombudsman carried 
out.  The  report  shall  include  an  assessment  of  the  compliance  with  the  Ombudsman’s 
recommendations and an assessment of the adequacy of the resources available to perform the 
Ombudsman’s duties. These assessments may also be the subject of separate reports’ (see also 
recital 6). 

15 

 
The Commission has no objection to this proposal, and would point out that this is a matter 
for the European Parliament. 

The Ombudsman’s annual report to the European Parliament already covers compliance rates 
and  available  resources.  The  Ombudsman  publishes  each  year  a  second  report  with  updated 
figures (‘Putting it Right’). 

REFERRAL  TO  THE  EUROPEAN  ANTI-FRAUD  OFFICE  AND  THE  EUROPEAN 
PUBLIC PROSECUTOR’S OFFICE 

Article  6(2),  first  paragraph,  provides  that ‘[i]f  the  Ombudsman  considers  that  facts  learnt  in 
the  course  of  an  inquiry  might  relate  to  criminal  law,  the  Ombudsman  shall  notify  the 
competent national authorities and, in so far as the case falls within their powers, the European 
Anti-Fraud  Office  and  the  European  Public  Prosecutor’s  Office.  If  appropriate,  the 
Ombudsman shall also notify the Union institution, body, office or agency with authority over 
the  official  or  servant  concerned,  which  may  apply  the  second  paragraph  of  Article  17  of 
Protocol No 7 on the Privileges and Immunities of the European Union’ (see also Recitals 10 
and 11). 

The  Commission  partly  agrees  with  this  proposal,  as  it  considers  it  can  be  useful  for  the 
Ombudsman to notify the competent national authorities, the European Anti-Fraud Office and 
the  European  Public  Prosecutor’s  Office  when  facts  learnt  in  the  course  of  an  inquiry  might 
relate to criminal law. 

However, the Commission also considers that the text should be amended to cover a wider 
set of actions (see below).  

(1) 

(2) 

(3) 

The above wording is incorrect, as the institutions waive immunity upon request from 
or in cooperation with law enforcement authorities, but not on their own initiative.  

The  current  wording  of  the  first  part  of  the  first  sentence  ('If  the  Ombudsman 
considers that facts learnt in the course of an inquiry might relate to criminal law…') 
gives  a  certain  margin  of  appreciation  to  the  Ombudsman  as  to  whether  (or  not)  to 
report  such  facts,  and  when.  Both  Article  8(1)  of  Regulation  883/2013  and  Article 
24(1)  of  Regulation  2017/1939  do  not  leave  such  margin  of  appreciation  to  the 
institutions,  bodies,  offices  and  agencies,  but  provide  for  a  reporting  obligation  to 
either OLAF or the European Public Prosecutor’s Office, subject to no condition and 
'without (undue) delay'. 

The current wording of the last sentence could allow the Ombudsman  - after having 
reported to OLAF or  to  the European Public Prosecutor’s Office facts falling within 
their  respective  competences  -  to  notify  the  institution,  body,  office  or  agency  with 
authority over the official or servant concerned, while OLAF or the European Public 
Prosecutor’s  Office  may  wish,  on  the  contrary,  to  defer  the  provision  of  such 
information.  

Article  4(8)  of  Regulation  883/2013  gives  OLAF  some  margin  of  manoeuver,  as  it 
provides  that  ‘Where,  before  a  decision  has  been  taken  whether  or  not  to  open  an 
internal  investigation,  the  Office  handles  information  which  suggests  that  there  has 
been fraud, corruption or any other illegal activity affecting the financial interests of 
the Union, it may inform the institution, body, office or agency concerned'. (Emphasis 
added) 

16 

 
Moreover, if, following information received from the Ombudsman, OLAF opens an 
internal investigation concerning an official, other servant, member of an institution or 
body, head of office or agency, or staff member, OLAF has the obligation to inform 
the institution, body, office or agency to which that person belongs (Article 4(6) first 
paragraph  of  Regulation  883/2013).  However,  OLAF  may  also  choose  to  defer  the 
provision  of  such  information  (Article  4(6)  last  paragraph  of  Regulation  883/2013). 
Therefore,  notification  by  the  Ombudsman  of  the  institution,  body,  office  or  agency 
with  authority  over  the  official  or  servant  concerned  without  first  consulting  OLAF 
could have the side effect of jeopardising OLAF's decisions concerning the follow-up 
it would give to the information received (for instance, if it decides whether to open or 
not  an  investigation,  and  when  to  inform  the  institution,  body,  office  or  agency 
concerned of the opening of an internal investigation).  

The same considerations (need to protect the confidentiality of future investigations) 
apply as far as the European Public Prosecutor’s Office is concerned. 

The Commission proposes the following text: 

‘If facts learnt in the course of an Ombudsman inquiry might constitute or relate to a criminal 
offence, the Ombudsman shall report to the competent national authorities and, in so far as the 
case  falls  within  their  respective  competences,  the  European  Anti-Fraud  Office  and  the 
European Public Prosecutor’s Office, in accordance with Article 24 of Regulation 2017/1939. 
This  is  without  prejudice  to  the  general  reporting  obligation  of  all  the  institutions,  bodies, 
offices  and  agencies  to  the  European  Anti-fraud  Office,  in  accordance  with  Article  8  of 
Regulation  883/2013.  If  appropriate,  and  after  consulting  OLAF  or  the  European  Public 
Prosecutor’s  Office,    the  Ombudsman  shall  also  notify  the  Union  institution,  body,  office  or 
agency  with  authority  over  the  official  or  servant  concerned,  which  may  initiate  the 
appropriate procedures.’ 

NOTIFICATION  BY  THE  OMBUDSMAN  TO  THE  PERSON  CONCERNED  AND  TO  THE 
COMPLAINANT  OF  THE  TRANSMISSION  OF  INFORMATION  TO  THE  EUROPEAN 
PUBLIC PROSECUTOR'S OFFICE 

the  Union's  financial 

interests  against  criminal  offences,  notably 

Recital  11  indicates  that:  'Account  should  be  taken  of  the  recent  changes  concerning  the 
the 
protection  of 
establishment  of  the  European  Public  Prosecutor's  Office  by  Council  Regulation  (EU) 
2017/1939,  so  as  to  allow  the  Ombudsman  to  notify  it  of  any  information  falling  within  the 
latter's remit. Likewise, in order to fully respect the presumption of innocence and the rights of 
the defence enshrined in Article 48 of the Charter of the Fundamental Rights of the European 
Union,  it  is  desirable  that,  where  the  Ombudsman  notifies  the  European  Public  Prosecutor's 
Office of information falling within the latter's remit, the Ombudsman reports that notification 
to the person concerned and to the complainant.' 

The Commission partly agrees with this proposal, as the obligation to report to the European 
Public Prosecutor's Office is laid down in Regulation 2017/1939.  

However,  the  Commission  considers  that  the  last  sentence  should  be  deleted.  If  the 
Ombudsman reports to the European Public Prosecutor's Office any information falling within 
the latter's remit, but also to the person concerned and the complainant, this may interfere with 
any  potential  or  future  investigative  activity  by  the  European  Public  Prosecutor's  Office.  In 
addition, at the stage of the transmission of the information to the European Public Prosecutor's 
Office, no criminal investigation is ongoing yet and "no charges" to any concerned person have 
been made. Therefore, the respect of Article 48 of the EU Charter of Fundamental Rights is not 

17 

 
yet  "activated".  At  that  stage,  there  is  the  need  to  preserve  the  confidentiality  of  any  future 
criminal  investigation.  The  European  Public  Prosecutor's  office  is  bound  to  respect  the  EU 
Charter of Fundamental Rights and the procedural rights (see Articles 5 and 41 of the Council 
Regulation 2019/1939) during its investigations. 

COOPERATION  WITH  THE  EUROPEAN  UNION  AGENCY  FOR  FUNDAMENTAL 
RIGHTS 

Article  7(2)  provides  that:  ‘[w]ithin  the  scope  of  the  Ombudsman’s  duties,  the  Ombudsman 
shall  cooperate  with  the  European  Union  Agency  for  Fundamental  Rights  and  with  other 
institutions  and  bodies,  while  avoiding  any  duplication  with  their  activities’  (see  also  recital 
12). 

The Commission agrees with the principle that the Ombudsman should cooperate with the 
European Union Agency for Fundamental Rights within the scope of its duties. However, it 
considers that the text should be clarified for the following reasons: 

The Ombudsman has no general competence in the field of human rights as such and may only 
deal with cases of maladministration and cooperate with the Agency on Fundamental Rights in 
that area. Wider cooperation with ‘other institutions and bodies’ is not appropriate unless the 
proposal  clarifies  which  other  institutions  and  bodies  are  meant  (which  area  of  competence? 
EU institutions/bodies or the Member States bodies?). 

The Commission proposes the following wording: 

‘Within the scope of his or her duties as laid down in Article 228 TFEU, the Ombudsman shall 
cooperate  with  the  European  Union  Agency  for  Fundamental  Rights,  while  avoiding  any 
duplication  with  its  activities,  as  well  as  with  institutions  and  bodies  of  Member  States  in 
charge of the promotion and protection of fundamental rights.’ 

RESTRICTIONS ON THE POSSIBLE OMBUDSMAN’S CANDIDATES 

Article  8(2)  provides  that  ‘[t]he  Ombudsman  shall  be  chosen  from  among  persons  who  are 
Union citizens, have full civil and political rights, offer every guarantee of independence, have 
not been Members of national governments or Members of Union's institutions within the past 
three years, meet conditions of impartiality equivalent to those required for a judicial office in 
their country and have the acknowledged competence and experience to undertake the duties of 
the Ombudsman.’ 

The Commission does not agree with this proposal for the following reasons: 

(1) 

(2) 

The  obligation  for  the  Ombudsman  to  be  independent  and  not  to  seek  or  take 
instructions  from  any  government,  institution,  body,  office  or  entity  does  not  justify 
excluding individuals who have held political office in the past 3 years in a national 
government or EU institution. An equivalent prohibition does not apply for the judges 
and advocates-general of the Court of Justice (see Article 253 TFUE). 

The Commission questions the proportionality of excluding all public office holders, 
including  former  judges  of  the  Court  of  Justice,  Members  of  the  European  Court  of 
Auditors  and  Members  of  the  European  Parliament,  irrespective  of  their  personal 
merits  and  despite  similarities  with  other  categories  of  people  who  would  not  be 
excluded. If the purpose is to avoid conflicts of interest, there are more proportionate 
ways of achieving it.  

18 

 
(3) 

The current Statute provides ‘(…) and meet the conditions required for the exercise of 
the highest judicial office in their country or have the acknowledged competence and 
experience to undertake the duties of Ombudsman.’ There are no explanations for this 
change and transformation of the first alternative requirement. The direct consequence 
of  the  proposed  change  will  be  to  favour  candidates  having  held  the  office  of 
Ombudsman over those having held national judicial offices. 

IMPLEMENTING PROVISIONS 

 

Article  17  introduces  the  minimum  content  (six  items)  that  these  provisions  should 
include  and  the  need  for  an  adoption  ‘in  accordance  with  this  Regulation’.  The 
Commission suggests that the relevant institutions, such as the European Parliament, 
the  Council  and  the  Commission  are  consulted  when  adopting  these  implementing 
provisions, as it is the common practice for other institutions. 

MISCELLANEOUS AMENDMENTS 

 

 

 

 

Article  9(3)  provides  that  ‘[i]n  the  event  of  early  cessation  of  duties,  a  new 
Ombudsman shall be appointed within three months of the office's falling vacant for 
the remainder of the term of office of the European Parliament. Until such time as a 
new  Ombudsman  has  been  elected,  the  principal  officer  referred  to  in  Article  13(2) 
shall be responsible for urgent matters falling within the Ombudsman’s remit’. 

The Commission agrees with this proposal, as it clarifies that the ‘principal officer’ 
(the  Ombudsman’s  secretariat  referred  to  in  Article  13)  is  in  charge  of  ensuring 
business continuity when the Ombudsman’s duties cease prematurely. 

Article  10  provides  that  ‘[w]here  the  European  Parliament  intends  to  request  the 
dismissal of the Ombudsman in accordance with Article 228(2) of the TFEU, it shall 
hear the Ombudsman before making such a request.’ 

The Commission agrees with this proposal, as it is fair that the European Parliament 
should hear the Ombudsman when it intends to request its dismissal. 

Article 13(1) provides that ‘[t]he Ombudsman shall be awarded an adequate budget, 
sufficient  to  ensure  the  Ombudsman’s  independence  and  to  provide  for  the 
performance of the duties referred to in the Treaties and in this Regulation’. 

The Commission agrees with this proposal, as it spells out the obvious need for the 
Ombudsman to be given adequate financial resources to fulfil its duties. 

Article  13(3)  provides  that  ‘[t]he  Ombudsman  should  aim  to  achieve  gender  parity 
within the composition of the Ombudsman’s secretariat. 

The Commission agrees with this proposal, as it aims to  ensure gender  parity of in 
the  Ombudsman’s  secretariat.  However,  the  Commission  proposes  the  following 
addition: ‘(…) in line with Article 1d(2) of the Staff Regulations’. 

19