Abstract
This chapter examines the institutional and constitutional position of the European Ombudsman within the EU architecture. After some initial remarks on the establishment of the office, the chapter explains how the Ombudsman’s mandate is defined by the Treaties, the Statute and the Implementing Provisions. Next, some reflections are provided on the relationship between the European Ombudsman and other EU and national authorities, as well as the interaction between the Ombudsman and citizens/civil society organisations. The Ombudsman’s office own administrative set-up is considered next. Subsequent sections explore two well-known contributions of the office: the creation of the European Code of Good Administrative Behaviour and the inclusion of a right to good administration in the Charter. In addition, the treatment of the Ombudsman by the Union judiciary is discussed, and it is shown that the EU Courts have generally granted the Ombudsman considerable discretion which does not, nonetheless, amount to immunity. The chapter concludes by pointing out that the EU Ombudsman is a distinct actor in EU governance, and this also means that comparisons with domestic offices, while helpful as a source of inspiration (e.g. with regard to exchanges of best practice), cannot always serve as the reference point for the evaluation of the Ombudsman’s work.
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Notes
- 1.
For further accounts discussing the European Ombudsman’s mandate post-Lisbon see, for example, Ian Harden, ‘European Ombudsman’ in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds) The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) 1121; Alexandros Tsadiras, ‘The Ombudsman’ in Paul Craig EU Administrative Law (Oxford 2012) 739. Among the pre-Lisbon accounts compare also Katja Heede, European Ombudsman: Redress and Control at Union Level (Kluwer 2000); Paul Magnette ‘Between parliamentary control and the rule of law: the political role of the Ombudsman in the European Union’ (2003) 10 Journal of European Public Policy 677; Anne Peters ‘The European Ombudsman and the European Constitution’ (2005) 42 Common Market Law Review 697; Päivi Leino, ‘The wind is in the North: The first European Ombudsman (1995–2003)’ (2004) 10 European Public Law 333; Nikos Vogiatzis, ‘Communicating the European Ombudsman’s Mandate: An Overview of the Annual Reports’ (2014) 10 Journal of Contemporary European Research 105—focusing on the Annual Reports between 1995 and 2010.
- 2.
Jean-Pierre Jarry, The European Parliament and the establishment of a European Ombudsman: Twenty years of debate 1974–1995 (European Parliamentary Research Service 2015).
- 3.
On this latter point see, for example, Myrto Tsakatika, ‘Claims to legitimacy: The European Commission between continuity and change’ (2005) 43 Journal of Common Market Studies 193.
- 4.
Weiqing Song and Vincent Della Sala, ‘Eurosceptics and Europhiles in accord: The creation of the European Ombudsman as an institutional isomorphism’ (2008) 36 Policy & Politics 481, at 482.
- 5.
See Jarry (n 2).
- 6.
Song and Della Sala (n 4) 484.
- 7.
On which see, generally, Leino (n 1) 338–339; Heede (n 1) 79–112; Gabriele Kucsko– Stadlmayer, European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Springer 2008); Mary Seneviratne, Ombudsmen: Public services and administrative justice (Butterworths 2002) 12–16; Linda Reif, The ombudsman, good governance and the international human rights system (Martinus Nijhoff 2004) 25–54. Alongside Leino, Diamandouros also observed that, historically, the establishment of ombudsman institutions occurred further to three primary waves focusing on legality, maladministration and human rights, while (rightly) adding that often such categorisation does not correspond to rigid and distinct models of ombudsman; see Nikiforos Diamandouros, ‘The principle of good administration in the recommendations of the European Ombudsman’ (2007) Speech at a seminar in Sofia, Bulgaria, available at: www.ombudsman.europa.eu/speeches/en/2007-09-17.htm
- 8.
Konstantinos Magliveras, ‘Best intentions but empty words: The European Ombudsman’ (1995) 20 European Law Review 401, at 408–409.
- 9.
Jarry’s account (n 2, at 31–34) captures how the events unfolded.
- 10.
See further on this point Vogiatzis (n 1) and the various accounts in The European Ombudsman: Origins, Establishment, Evolution (Office for Official Publications of the European Communities 2005).
- 11.
Magnette (n 1); Peters (n 1).
- 12.
That expansion was often mandated by practical reasons, e.g. the 2004 enlargement of the Union.
- 13.
The term ‘administrative accountability’ is by Mark Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13 European Law Journal 447, at 456.
- 14.
Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman’s duties, 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) (hereinafter the ‘Statute’).
- 15.
Decision of the European Ombudsman adopting Implementing Provisions, available at: www.ombudsman.europa.eu/en/resources/provisions.faces (hereinafter the ‘Implementing Provisions’).
- 16.
See Art 6(1) TEU.
- 17.
See Art 43 of the Charter.
- 18.
Tsadiras (n 1) 743, with reference to Case 972/24.10.96/FMO/DE/DT, where the Ombudsman explained that what matters is the person’s physical presence in the territory of the Union.
- 19.
Annual Report 2004, 36.
- 20.
Case OI/1/2010/(BEH)MMN. The Ombudsman found that the abovementioned entity had committed maladministration as regards the content of the vacancy notice, but had not exceeded its discretion (and therefore not discriminated against the complainant) when eventually deciding not to recruit a third-country national (ibid., points 56–78).
- 21.
Annual Report 2006, 36.
- 22.
According to Annual Report 2014 (on p. 17), 87% of inquiries closed by the Ombudsman originated from individual citizens, while only 13% from companies, associations or other legal entities. No such figures are available in the 2015 Annual Report.
- 23.
Annual Report 2009, 8.
- 24.
See Art 13 of the Implementing Provisions.
- 25.
Art 2(3) of the Statute.
- 26.
See, for example, Peters (n 1) 703.
- 27.
That being said, the CJEU could occasionally interpret narrowly its jurisdictional limitations in CFSP; see, for example, Case C-439/13 P, Elitaliana v Eulex Kosovo, EU:C:2015:753, in particular para 49.
- 28.
See Art 19 TEU.
- 29.
Art 2(7) of the Statute. As Harden observes, this applies to any court—for example, ‘contractual proceedings in a national court bar the Ombudsman from investigating the same facts’; see Ian Harden, ‘When Europeans complain: The work of the European Ombudsman (2000) 3 Cambridge Yearbook of European Legal Studies 199, at 230.
- 30.
Art 1(3) of the Statute.
- 31.
Art 2(6) of the Statute.
- 32.
On the usefulness of Annual Reports see also the discussion in Chap. 4.
- 33.
Annual Report 1997, 22–23.
- 34.
Ibid.
- 35.
See, for example, Annual Report 2008, 29.
- 36.
- 37.
Art 3(2) ECGAB. The application of the Staff Regulations does not mean that the Ombudsman is not competent to deal with a complaint stemming from an EU official.
- 38.
But see also Ioannis Dimitrakopoulos, ‘Is an illegal Community act necessarily an instance of maladministration, in the sense of Article 195 EC?’ (2009) 2 Review of European Administrative Law 45, exploring additions to that ‘list’.
- 39.
See Case 875/2011/JF, point 20.
- 40.
See Annual Report 1995, 9. Petitions addressed to Parliament are included therein. The challenges involved in categorising an activity as ‘political’ are considered in Chap. 6.
- 41.
Ian Harden, ‘What Future for the Centralized Enforcement of Community Law?’ (2002) 55 Current Legal Problems 506. See also the Opinion of Advocate General Trstenjak in Case C-331/05 P, Internationaler Hilfsfonds e.V. v Commission, EU:C:2007:191, para 59.
- 42.
See, for example, Case 1017/2010/MMN, point 11: ‘[N]either the Treaty … nor the Statute … establish as a condition for the admissibility of complaints that the complainant should be directly concerned by the instance of alleged maladministration’.
- 43.
See Art 3(1) of the Implementing Provisions.
- 44.
Art 2(4) of the Statute.
- 45.
Art 3(1) of the Implementing Provisions.
- 46.
Annual Report 2011, 14–15.
- 47.
Peters (n 1) 711.
- 48.
Annual Report 2014, 7. In 2014, 17 own-initiative inquiries were opened, a significant increase in comparison with previous years.
- 49.
Ibid.
- 50.
Annual Report 2010, 16.
- 51.
Ibid.
- 52.
Art 3(3) of the Implementing Provisions provides that 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’.
- 53.
See, for instance, Annual Report 2010, 6: ‘It is always better if the Ombudsman does not have to issue a critical remark or proceed to the stage of a draft recommendation in order to secure improvements. It is much better if cases can be settled by the institution itself or if a friendly solution can be accepted’.
- 54.
Art 3(5) of the Statute and Art 5 of the Implementing Provisions.
- 55.
Annual Report 2012, 32.
- 56.
Ibid.
- 57.
Annual Report 2010, 6.
- 58.
Annual Report 2012, 34. Again, the Ombudsman enjoys discretion in the selection (or not) of the draft recommendation.
- 59.
Art 3(6) of the Statute.
- 60.
Art 7(3) of the Implementing Provisions.
- 61.
See Annual Report 1997, 32.
- 62.
Which was on Frontex and submitted in November 2013; see OI/5/2012/BEH-MHZ and the discussion in Chap. 4.
- 63.
Art 3 of the Statute and Art 4 of the Implementing Provisions.
- 64.
Art 4(3) of the Implementing Provisions.
- 65.
See Art 3(2) of the Statute and Art 4(6) of the Implementing Provisions. From the formulation of Art 3(2) of the Statute (‘must testify at the request of the Ombudsman’), it follows that the process is mandatory, solely subject to the ‘relevant rules of the Staff Regulations, notably their duty of professional secrecy’.
- 66.
Art 4(11) of the Implementing Provisions.
- 67.
Sensitive documents in accordance with Article 9 of 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 (hereinafter ‘Regulation 1049’).
- 68.
Art 3(2) of the Statute.
- 69.
Art 3(3) of the Statute.
- 70.
Tsadiras (n 1) 750.
- 71.
‘Table ronde: Le Médiateur européen: 10 ans d’activité’ in Symeon Karagiannis and Yves Petit (eds) Le Médiateur européen: Bilan et perspectives (Bruylant 2007) 137, at 160 (comments by Nikiforos Diamandouros).
- 72.
Art 9(5) of the Implementing Provisions.
- 73.
Art 2(3) of the Statute.
- 74.
Art 10 of the Implementing Provisions.
- 75.
Case 1148/2013/TN.
- 76.
Indeed, the Ombudsman acknowledged that ‘Europol did its utmost to convince the US authorities of the necessity for the Ombudsman to inspect the document concerned’; ibid., point 9.
- 77.
See the Ombudsman’s response to a letter by the Commission at: www.ombudsman.europa.eu/en/cases/correspondence.faces/en/58891/html.bookmark
- 78.
Art 2(5) of the Statute.
- 79.
See also the relevant discussion in Chap. 6.
- 80.
Art 12 of the Implementing Provisions.
- 81.
Annual Report 2010, 60.
- 82.
See—now—Art 258 TFEU.
- 83.
On this point see Vogiatzis (n 1). Those exchanges concerned inter alia the Ombudsman’s insistence to interpret Union law and/or the scope of the Commission’s discretion in infringement proceedings.
- 84.
- 85.
See further Tsadiras (n 1), in particular 761.
- 86.
Vogiatzis (n 1) 120–121.
- 87.
European Ombudsman, ‘Strategy of the European Ombudsman: Towards 2019’ (2014) at 2 (contained in the Foreward).
- 88.
Ibid., 5.
- 89.
European Ombudsman, ‘Strategy for the mandate’ (2010) at 6.
- 90.
Peter Bonnor, ‘When EU civil society complains: civil society organisations and ombudsmanship at the European level’ in Stijn Smismans (ed) Civil Society and Legitimate European Governance (Edward Elgar 2006) 141. This ‘input’ is information concerning administrative malfunctions, frequently of a systemic nature.
- 91.
The European Ombudsman’s fruitful collaboration with NGOs particularly in the area of transparency and access to documents is explored in Chap. 5.
- 92.
See The Ombudsman’s Team, available at: www.ombudsman.europa.eu/en/atyourservice/team.faces. Beate Gminder had previously worked for the Commission. She succeeded Ian Harden, who served as Secretary-General from August 2006 until his retirement in July 2015. Between 1996 and 2006 he held several posts within the European Ombudsman’s office.
- 93.
European Ombudsman, Annual Management Plan 2016, 5.
- 94.
Ibid.
- 95.
Ibid. In the Annual Reports it is also mentioned that in 2006, a ‘staff retreat’ activity took place, which included a self-assessment exercise. The purpose was to ‘[develop] and [strengthen] the understanding of the institution’s values and mission, and to [promote] their effective delivery’; see Annual Report 2006, 31–32. Quite naturally, internal evaluations or reflections are regularly being organised; see, for example, Chap. 6 on the consultations before the adoption of the Strategies.
- 96.
On this point see Alexandros Tsadiras, ‘Rules of institutional “flat-sharing”: The European Ombudsman and his national peers’ (2008) 33 European Law Review 101, at 114. The ECGAB is available at: www.ombudsman.europa.eu/en/resources/code.faces#/page/1
- 97.
ECGAB (2005) p. 9.
- 98.
That Article provides as follows:
-
1.
In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration.
-
2.
In compliance with the Staff Regulations and the Conditions of Employment adopted on the basis of Article 336, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish provisions to that end.
For a discussion also on the possible legal bases see Paul Craig, ‘A General Law on Administrative Procedure, Legislative Competence and Judicial Competence’ (2013) 19 European Public Law 503.
-
1.
- 99.
See the outputs of the project at: www.reneual.eu. See further Päivi Leino-Sandberg, ‘Enforcing citizens’ right to good administration: Time for action’ (2012) Research report written at the request of the European Parliament’s Legal Affairs Committee.
- 100.
- 101.
Ibid.
- 102.
Annual Report 2008, 76.
- 103.
ECGAB, p. 11.
- 104.
Beyond good administration, too, as the Code refers, for example, to proportionality. For interesting analyses comparing the Code with the case-law of the Court see, for example, Joana Mendes, ‘Good administration in EU Law and the European Code of Good Administrative Behaviour’ (2009) EUI Working Paper Law 2009/09 (accepting that the Code goes beyond Article 41 of the Charter, thereby reflecting ‘different layers of good administration’); Leino-Sandberg (n 99); Juli Ponce, ‘Good administration and administrative procedures’ (2005) 12 Indiana Journal of Global Legal Studies 551, in particular 565–576.
- 105.
Art 26 ECGAB.
- 106.
Art 25 ECGAB.
- 107.
See, for example, how the following articles are worded: proportionality (Art 6 ECGAB); absence of abuse of power (Art 7 ECGAB); objectivity (Art 9 ECGAB); fairness (Art 11 ECGAB); duty to state grounds (Art 18 ECGAB)—among others.
- 108.
Art 17 ECGAB.
- 109.
Art 23 ECGAB. Regarding data protection, reference is made to Regulation 45/2001 (Art 21 ECGAB).
- 110.
European Commission, ‘Code of Good Administrative Behaviour: Relations with the public’ available at: ec.europa.eu/transparency/code/_docs/code_en.pdf. Section 6 of the Commission’s Code concerning the complaints against the Commission mentions the possibility to contact the Ombudsman.
- 111.
Decision of the Secretary-General of the Council/High Representative for Common Foreign and Security Policy of 25 June 2001 on a code of good administrative behaviour for the General Secretariat of the Council of the European Union and its staff in their professional relations with the public, OJ C 189/1.
- 112.
ECGAB, p. 8.
- 113.
Ibid., 8–10.
- 114.
This has been acknowledged by the Ombudsman in the ECGAB (on p. 11): ‘The principles thus help to raise the quality of public administration, strengthen the rule of law, and make it less likely that discretionary power will be used arbitrarily’; or on p. 2, where the impact of the Code and the proactive ‘willingness [of the EU institutions] … to identify shortcomings and to find ways of resolving potential problems before they occur’ is discussed.
- 115.
Nikiforos Diamandouros, ‘The European Ombudsman and good administration post-Lisbon’ in Diamond Ashiagbor, Nicola Countouris and Ioannis Lianos (eds) The European Union after the Treaty of Lisbon (Cambridge University Press 2012) 219.
- 116.
Speech of the European Ombudsman—Public Hearing on the draft Charter of Fundamental Rights of the European Union, Brussels, (2000) available at: www.ombudsman.europa.eu/speeches/en/charter1.htm.
- 117.
Herwig Hofmann and Bucura Mihaescu, ‘The Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case’ (2013) 9 European Constitutional Law Review 73, at 85–86. See below for a brief discussion on whether this right contains subjective rights.
- 118.
Art 42 of the Charter.
- 119.
Art 51 of the Charter.
- 120.
See initially Case C-482/10, Cicala v Regione Siciliana, EU:C:2011:868, para 28; Joined Cases C-141/12 and C-372/12, YS v Minister voor Immigratie, Integratie en Asiel, EU:C:2014:2081, para 67. Importantly, though, in YS the CJEU left open the question of the exact scope of the right to good administration as general principle of EU law, because such question was not asked by the referring court (ibid., para 68). In WebMindLicenses Kft the CJEU cited the YS case and held that Article 41 of the Charter was not relevant as that provision is addressed only to the EU institutions, bodies, offices and agencies (Case C-419/14, WebMindLicenses Kft, EU:C:2015:832 para 83). In the earlier H.N. case, however, the CJEU had found that good administration as a general principle applied to member states—see Case C-604/12, H.N., EU:C:2014:302, paras 49–51.
- 121.
See the Charter’s explanations at eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0017:0035:en:PDF, and, among others, Case C-269/90, TU München EU:C:1991:438, paras 14–15; Case 222/86, Heylens, EU:C:1987:442, paras 14–16; Case T-167/94, Nölle v Council and Commission, EU:T:1995:169, para 73; Joined Cases T-458/09 and T-171/10, Slovak Telekom v Commission, EU:T:2012:145, paras 67–68.
- 122.
The reason-giving requirement stems from Article 296 TFEU; Article 41(3) of the Charter corresponds to Article 340 TFEU; Article 41(4) of the Charter corresponds to Articles 20(2)(d) and 24(4) TFEU.
- 123.
Hofmann and Mihaescu (n 117) 90. The classification between rights and principles need not be discussed in detail here; the term rights under Article 51(1) of the Charter refers to subjective, judicially cognizable rights, while the term principles in Article 51(1) and, in particular, Article 52(5) of the Charter entails that implementation is required via legislative and executive acts, and that these rights ‘are judicially cognisable only in the interpretation of such acts and in the ruling on their legality’.
- 124.
Paul Craig, ‘Article 41—Right to Good Administration’, in Steve Peers et al. (n 1) 1069, at 1072–1073.
- 125.
ECGAB, p. 6.
- 126.
On the Court’s case-law touching upon fairness and impartiality under Article 41 of the Charter see, for example, Leino-Sandberg (n 99) 12–14, and cases cited therein; see further Craig (n 124).
- 127.
T-217/11, Staelen v European Ombudsman, EU:T:2015:238, paras 81–83 and 263–267. The case concerned the liability of the Union (via the liability of the Ombudsman).
- 128.
Some of the content of the ECGAB echoes the Commission’s famous White Paper on European Governance; see Commission of the European Communities, ‘European Governance: A White Paper’ COM (2001) 428 final.
- 129.
T-103/99, Associazione delle Cantine Sociali Venete v European Ombudsman and European Parliament EU:T:2000:135. The complainant (a legal person) was dissatisfied with the eclipse of the two-month deadline after submitting its observations to the Ombudsman, and considered that the Ombudsman had unlawfully refrained from finding an instance of maladministration (failure to act).
- 130.
Ibid., para 46.
- 131.
Ibid., paras 47–50.
- 132.
Ibid., para 54.
- 133.
T-209/00, Frank Lamberts v European Ombudsman, EU:T:2002:94, para 50.
- 134.
More specifically, the Ombudsman argued that ‘he has wide discretion with regard to the facts and the measures to be taken following his inquiries and that he is not bound to instigate an inquiry, draw up recommendations, pursue friendly settlements or send reports to the European Parliament. He conclude[d] that his choice of the measure to be taken following his inquiry cannot give rise to non-contractual liability on the part of the Community’; ibid., para 45.
- 135.
In this sense, the wording of Article 340(2) TFEU on extra-contractual liability is in disharmony with established case-law.
- 136.
T-209/00, para 57.
- 137.
Ibid., paras 68–69.
- 138.
Ibid., paras 73–77.
- 139.
See, for example, Arts 2(5) and 3(5) of the Statute, and the relevant discussion above.
- 140.
Case C-234/02, European Ombudsman v Frank Lamberts, EU:C:2004:174.
- 141.
Ibid., para 35. In the Ombudsman’s view, a permissible action could concern, for example, the non-respect by the Ombudsman of confidentiality requirements.
- 142.
Ibid., para 36.
- 143.
Art 8 of the Statute.
- 144.
C-234/02, paras 43–47.
- 145.
The conditions for liability are well known: a sufficiently serious breach of the rule of law intended to confer rights on individuals; the identification of the damage suffered; and the direct causal link between the breach of the obligation resting on the author of the act and the damage sustained by the applicant. See Case C-352/98 P, Bergaderm and Goupil EU:C:2000:361, paras 41–44. On the sufficiently serious breach, the test is whether the EU institution (or body) manifestly and gravely disregarded the limits on its discretion.
- 146.
C-234/02, paras 49–50.
- 147.
Opinion of Advocate General Geelhoed in Case C-234/02, paras 56–59.
- 148.
Ibid., paras 107–110.
- 149.
Case T-412/05, M. v European Ombudsman, EU:T:2008:397.
- 150.
Ibid., paras 133–140.
- 151.
Ibid., paras 118–119.
- 152.
Ibid., paras 129–140.
- 153.
Ibid., para 143.
- 154.
The General Court confirmed this in a case concerning the Ombudsman’s scrutiny over the Commission’s handling of an infringement complaint; see Case T-430/14, Mirelta Ingatlanhasznosító Kft. v European Ombudsman, EU:T:2014:996.
- 155.
Peters (n 1) 726.
- 156.
Tsadiras (n 1) 760.
- 157.
Case C-261/13 P, Schönberger v European Parliament, EU:C:2014:2423, para 22 (emphasis added).
- 158.
T-144/06, O’Loughlin v European Ombudsman and Ireland, EU:T:2006:237, para 15.
- 159.
Schönberger (n 157) para 24.
- 160.
Case C-331/05 P, Internationaler Hilfsfonds eV v Commission, EU:C:2007:390.
- 161.
Ibid., para 12. See also the Opinion of Advocate General Trstenjak in C-331/05 P, in particular paras 56–71.
- 162.
Ibid., paras 25–31.
- 163.
Opinion of AG Trstenjak in Case C-331/05 P, EU:C:2007:191, paras 61–63.
- 164.
More generally, it has been observed that a ‘shift towards a proactive ombudsman model’ may result in a restriction ‘on citizens’ ability to participate’ through the submission of complaints to the ombudsman; see Chris Gill, ‘The evolving role of the ombudsman: A conceptual and constitutional analysis of the “Scottish solution” to administrative justice’ [2014] Public Law 662, at 670–671.
- 165.
Robert Lee, ‘The ombudsman in a political context: The Commonwealth and Victoria ombudsmen in Australia’ (1991) 57 International Review of Administrative Sciences 441, at 459.
- 166.
Case C-167/06 P, Komninou v Commission, EU:C:2007:633.
- 167.
Ibid., paras 43–46.
- 168.
Staelen (n 127).
- 169.
Ibid., paras 80–86.
- 170.
These were: the incorrect assessment of the content of a document produced by the European Parliament; the Ombudsman’s omission to examine when and how the applicant’s name was registered in the catalogue of successful applicants and then transferred to the EU institutions—this was crucial for the finding or not of maladministration, on the part of the European Parliament; the Ombudsman did not have sufficient evidence to conclude that the name of applicant had been transferred to all the Secretaries-General of the European Parliament, but concluded otherwise in his decision, relying on mere assertions of the European Parliament. A summary of these points may be found at paras 142–145. Another issue was that the Ombudsman, without providing convincing explanations, responded to the complainant’s requests with a delay of five and eight months, time-frames which could not be characterised as reasonable (ibid., para 256). However, there was no ‘sufficiently direct link between the delay in sending those replies and the loss of opportunity of recruitment for the applicant as an official’ (ibid., para 287).
- 171.
The ‘non-pecuniary loss’ was calculated at 7000 euros: owing to the Ombudsman’s unlawful acts during the investigation, the applicant lost her trust in the institution of the Ombudsman, while spending time and energy waiting on the Ombudsman’s findings (ibid., paras 288–294). The Ombudsman’s apologies could not redress this, according to the General Court.
- 172.
Opinion of Advocate General Wahl in Case C-337/15 P, European Ombudsman v Staelen, EU:C:2016:823, in particular paras 4, 41, 112–113.
- 173.
Case C-337/15 P, European Ombudsman v Staelen (pending).
- 174.
The General Court did not accept, however, that sufficient evidence had been provided to conclude that the Ombudsman was impartial vis-à-vis Parliament.
- 175.
This also stems from para 261 of the judgment, where it was explained that a period of less than a year between the opening and the closure of an own-initiative inquiry (opened by the Ombudsman to redress errors made in the context of his previous inquiry) was certainly reasonable.
- 176.
It is noted that merely confirmatory acts, which do not contain any new element, cannot form the basis of an action for annulment.
- 177.
T-141/05, Internationaler Hilfsfonds eV v Commission, EU:T:2008:179, para 86.
- 178.
Opinion of Advocate General Mengozzi in Case C-362/08 P, Internationaler Hilfsfonds eV v Commission EU:C:2009:553, paras 166–169.
- 179.
Ibid., para 171.
- 180.
Ibid.
- 181.
C-362/08 P, paras 59–61.
- 182.
Katja Heede, ‘Who litigates at Union level, and where?’ (2001) 26 European Law Review 509, in particular 514–518. She argues (on p. 517) that the Ombudsman is involved in new areas of litigation, which include failure to answer letters and other administrative wrongdoings, the Commission’s role in infringement proceedings, and complaints about contracts, funds and grants. See further the discussion in Chap. 4.
- 183.
Charter’s explanations (n 121).
- 184.
See, for example, Annual Report 2008, 57.
- 185.
Compare also the discussion in Chap. 4 on the Ombudsman’s ‘approach based on law’.
- 186.
Trevor Buck, Richard Kirkham and Brian Thompson, The Ombudsman Enterprise and Administrative Justice (Ashgate 2011) 15–19.
- 187.
Gill (n 164) 675; Richard Kirkham, Brian Thompson and Trevor Buck, ‘Putting the Ombudsman Into Constitutional Context’ (2009) 62 Parliamentary Affairs 600; James Spigelman, ‘The Integrity Branch of Government’, (2004) 78 Australian Law Journal 724.
- 188.
For a helpful overview see Kucsko– Stadlmayer (n 7).
- 189.
See Leino (n 1) at 339.
- 190.
See Ann Abraham, ‘The ombudsman and “paths to justice”: a just alternative or just an alternative?’ [2008] Public Law at 1, 4. For Abraham, what distinguishes the ombudsman from mediators is the ‘adjudicatory function’, albeit one exercised very differently when compared with courts.
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Vogiatzis, N. (2018). The Institutional and Constitutional Position of the European Ombudsman. In: The European Ombudsman and Good Administration in the European Union . European Administrative Governance. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-57395-7_2
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