How can ombudsman promote good administration

Second, the Treaty of Lisbon recognises that effective implementation of Union law by the Member States is a matter of common interest and provides for the Union to support the efforts of Member States to improve their administrative capacity to implement Union law [4]. Third, Community law does, in fact, impose institutional requirements for administration in particular fields, such as - to give just a few examples - data protection [5] , competition [6] , air passenger rights [7] and telecommunications [8].

The institutional arrangements that the Member States must have in these fields include the provision of complaints procedures and effective remedies that can be invoked by individuals whose rights have been infringed. In practice, such rights are normally rights against private actors, though, in the field of data protection, they also apply to public authorities.

There is, however, nothing in Community law that requires Member States to have an ombudsman with general competence to handle complaints against public authorities which fail to respect rights under Community law. In practice, 25 out of the 27 Member States do have an ombudsman at the national level and in one of the exceptions, Germany, the Committee on Petitions of the Bundestag fulfils a role similar to that of an ombudsman.

The national and regional ombudsmen make a vital contribution to ensuring that citizens and residents of the European Union can know and enjoy their rights. Their co-operation with me as European Ombudsman, which I mentioned earlier, now takes place through the European Network of Ombudsmen [9]. The Network exists and functions on an entirely voluntary basis. In October , its members adopted a Statement in order to make the European Union dimension of their work better known and to clarify the service that they provide to people who complain about matters within the scope of European Union law.

The Statement makes clear that ombudsmen respond to complaints and work proactively to raise the quality of public administration and public services. They encourage good administration and respect for rights, suggest appropriate solutions to systemic problems, spread best practice and promote a culture of service-mindedness.

The grounds on which an ombudsman can act normally include: violation of rights, including human and fundamental rights; other unlawful behaviour, including failure to respect general principles of law; and failure to act in accordance with principles of good administration.

That formulation raises certain core issues for this seminar. What are the principles of good administration? What is the relationship between good administration in the work of, on the one hand, the courts and, on the other hand, the ombudsman?

The Treaty Establishing the European Community contains a number of provisions that are relevant to good administration at the Community level. Article sets out the basic grounds for annulment of Community acts by the Court of Justice. Article requires legally binding Community acts to state the reasons on which they are based. Article provides for legislation to guarantee transparency at the EU level, in the form of a right of access to European Parliament, Council and Commission documents.

Article makes provision for the non-contractual liability of the Community. Relevant Community legislation applying at the EU level includes the Regulations on public access to documents and on protection of personal data [10].

As I have already mentioned, there is also a Directive to the Member States on data protection. However, Community law does not confer on citizens any general right of access to documents or to information held by the Member States about EU-related matters.

Such Community law rights as do exist are limited to specific fields, in particular the environment [11]. Provision has also been made recently for the beneficiaries of Community agricultural subsidies to be identified [12]. The public procurement Directives should also be mentioned as an important body of law, which has quite profound effects in the Member States. Instead, the relevant Community law has mostly been made by the judges. Two lines of case law are relevant in this context.

The first establishes the well-known principles of supremacy and direct effect. The second is that in which the Court has developed the general principles of Community law, such as proportionality, the rights of defence, equality, legitimate expectations and fundamental rights [13].

Because of supremacy and direct effect, it applies not only at the EU level, but also governs the application of Community law by the administrative authorities of the Member States. Indeed, the Court of Justice has explicitly stated that it is for all the authorities of the Member State to ensure observance of the rules of Community law within the sphere of their competence and that the duty to disapply national legislation which contravenes Community law applies not only to national courts but to all organs of the State, including administrative authorities [14].

For understandable reasons, however, most of the case law about supremacy and direct effect, and most commentary on that case law, focuses on the role of national courts. One of the main objectives of the European Code of Good Administrative Behaviour, which was drafted by the European Ombudsman and subsequently approved by the European Parliament, was to make more easily accessible certain of the general principles that emerge from the case law of the Court of Justice, such as the right to be heard, proportionality, non-discrimination and the protection of legitimate expectations.

Whilst the Code is not legally binding, it has proved helpful as a source of inspiration to national legislators, administrations and ombudsmen, inside as well as outside the European Union and has been used as a basis for a Council of Europe recommendation on good administration [15]. Furthermore, at the request of the European Parliament, the European Ombudsman applies the principles in the Code in examining whether there is maladministration by Community institutions and bodies.

There was no suggestion, for example, to mention it in the Statement adopted by the members of the European Network of Ombudsmen in October The wording of the first two paragraphs of Article 41 is also based on the case law of the Community courts [18].

The scope of Article 41 is limited to the institutions and bodies of the Union. Furthermore, it will not become legally binding until the entry into force of the Treaty of Lisbon. The interpretation of Article 41 is, therefore, of relevance to the administration of Community law at all levels, not just the Union level.

Rather, it leaves scope for further development of the concept, both by the Courts and by the Ombudsman. That brings me to the Ombudsman institution, which acts on behalf of the public interest, as well as providing an alternative remedy for individuals to protect their rights. In both roles, the Ombudsman has different characteristics and procedures from the Court.

As regards the public interest dimension, the Ombudsman adopts a proactive and systemic approach, so as to promote good administration and thereby prevent instances of maladministration from occurring. It is appropriate, therefore, to recognise the special importance of human rights by mentioning them expressly, even though, in the Community legal order, such rights are part of the general principles of law and could thus, logically, be subsumed under legality.

Substantively, the Charter of Fundamental Rights is not yet a legally binding instrument. The European Ombudsman has taken the view, however, that the three European Union institutions which proclaimed the Charter at the Nice summit in December that is, the European Parliament, the Council and the Commission should respect its provisions, and that failure to do so would constitute maladministration.

The institutions have accepted that position, which enables the Ombudsman to apply the Charter, despite the fact that it is not, as such, legally binding. From what I have said so far, I hope you will understand that there is necessarily a great deal of overlap between legality, human rights and the principles of good administration.

Those three elements are not to be thought of as separate boxes, containing norms that can be rigidly characterised as belonging to one box and one box only. A better way of thinking of the three elements could be as overlapping circles, whose relative sizes and positions change over time. Furthermore, as I have already stressed, law does not consist merely of the texts that have been adopted by the legislator or the administration.

It also includes the general principles of law, which should, among other things, guide the correct understanding and application of such texts. A civil servant who believes that the law requires, or permits, an action that is unjust, unfair, or unreasonable will, therefore, often have misunderstood the law.

Let me try to make explicit the ideas that underlie that view. The fundamental idea is that the public administration exists to serve citizens. That idea does not deny, but at the same time cannot be reduced to, the classical conception of administrative science that the public administration should identify and pursue the public interest 8. Nor can it be reduced to the goal of efficient, effective and economical delivery of public services.

They are citizens, who understand both that they have rights and that public administration involves the balancing of conflicting interests and principles.

To win public trust and acceptance, the pub lic administration needs not only, for example, to be respectful and courteous towards citizens, but also to be accountable and responsive. That implies readiness of the administration to explain and to justify its conduct through genuine and meaningful dialogue with citizens, both about matters that affect them personally and about the public interest. I have expressed the idea of service to citizens in general terms because my experience, both as a citizen and as a national ombudsman, lead me to believe that the conception of public administration that I have outlined has relevance for many European countries.

As European Ombudsman, however, my responsibility is the Community institutions and bodies. At present, therefore, although the case law of Community Courts is continually developing and it is not excluded that the Community legislator might, in the future, adopt a European administrative law, the idea of service to citizens is not enshrined in Community law.

I could stop at that point, with the conclusion that, as Community law now stands, there is indeed life beyond legality as regards good administration. I am tempted, however, to go further and to share with you two considerations that lead me to think, at least tentatively, that the continued existence of conceptual space for life beyond legality is something positive for citizens.

The first consideration is that law and legality continue to be closely associated with blame and sanctions. I put this forward not as a conceptual point about the nature of law, but as an observation, based on my experience as an ombudsman, about the way that many administrators view the world.

I would add that it is also a view shared by a significant number of complainants. Blame and sanctions are, of course, necessary in some cases. Corrupt officials should be punished. Lazy or incompetent officials should be disciplined. But a culture of service is not a culture of blame.

If we tell civil servants that good administration is a legal obligation and that poor service is illegal, are we not likely to re-inforce a defensive culture in which complaints are regarded as a threat?

Another danger is that, by defining requirements of good administration as legal obligations, we may encourage administrators to focus on rules that can be applied mechanically, rather than engage in the more demanding task of exercising judgement in applying principles.

Judgement, after all, involves the risk of being wrong. Here is an example to illustrate my concerns. There is a European institution which has a code of good administrative behaviour requiring letters to be answered within 15 days. In my experience, administrators take that seriously, as they should. The precise rule is appropriate and effective. Whether it would be made any more effective by defining it as a legal obligation is questionable, but that is not my point.

To my mind, that is a principle that should rarely be invoked and which requires a convincing explanation of why it applies in the particular circumstances. In an administrative culture where such attitudes exist, the attempt to promote a service culture through law might only reinforce a narrow and legalistic approach. At the same time, it might also encourage the tendency of some complainants to regard their complaint as a denunciation, rather than as an instrument for seeking practical redress, or a constructive solution to a problem.

The second consideration concerns the relationship between the work of the Ombudsman and the work of the courts. As European Ombudsman, I see myself as the partner of the Community Courts in relation to all three elements of good administration. Our joint task is to ensure that the Community administration takes rights seriously and embodies a culture of service to citizens, both in its understanding and application of the law, and in the exercise of its discretionary powers.

The Courts make legally binding decisions. They have power to annul legal acts and to make enforceable awards of damages. The logic of judicial procedures leads to an adjudication, in which the Court determines authoritatively the legal rights of the parties.

On the one hand, there is a dispute-resolution mode, which focuses on problem-solving, conflict-reduction, possibilities for compromise and win-win outcomes. On the other hand, there is an adjudicative mode, in which I find either that there is maladministration, or that there is no maladministration. That mode is governed by a logic analogous to that of the Court, in which one party wins and the other loses.

The appropriate balance between the two modes depends on the case and some cases may involve switching between the two modes more than once. Willingness to co-operate with the Ombudsman to achieve a satisfactory resolution of the complaint is an important expression of commitment to that principle. Friends and colleagues, let me bring my remarks to a conclusion by emphasising that successful ombudsmanship involves, among many other things, adapting the institution prudently to the constitutional, legal and administrative cultures in which it is to operate.

The flexibility and diversity of the institution is part of its strength. There is, therefore, both space and the need for ombudsmen in different countries to adopt different approaches. At the same time, however, despite some setbacks, we have now largely overcome the profoundly traumatic political divisions of Europe and have greatly moderated the deep social and economic divisions of the 19th and early 20th centuries.

In these circumstances, I believe that the three waves that I described earlier are indeed destined to converge, in the sense that the rule of law, human rights and a culture of service in the public administration represent values and aspirations that we all share. Nikiforos Diamandouros ed. The Spanish Constitution of made provision for the office of Ombudsman Article 54 and the first Ombudsman was appointed in In Greece, the Ombudsman was established in Article 1 of Law n.

The first Greek Ombudsman took office in Make a complaint. Home Speech. Available languages: EN English. This seminar is, therefore, at the cutting edge of modern ombudsmanship.