Aims of the Book
The office of the European Ombudsman entered its third decade of operation in 2015. Created by the Maastricht Treaty and commencing its supervisory work in September 1995, it has experienced considerable growth in terms of complaint-handling or proactive initiatives. The Ombudsman receives and examines complaints or conducts own-initiative inquiries on maladministration in the activities of the EU institutions, bodies, offices and agencies.1 To date, the office has seen three office-holders: Jacob Söderman, Nikiforos Diamandouros and Emily OâReilly, all former national ombudsmen in their respective countries (Finland, Greece and Ireland).
This book explores the work of the European Ombudsman with a view to ascertaining how the office has improved the quality of the EU administration. In addition, it critically reflects upon the current mandate to identify challenges, and then proposals that would enable the Ombudsman to make a stronger contribution to accountability and democracy in the EU. When the first European Ombudsman set up the office in September 1995, the EU was clearly in a different stage of development. The same can be said about the office of the Ombudsman. Indeed, the Ombudsman is not anymore the cautious âbeginnerâ of the early nineties and is increasingly being perceived as an important actor in EU administrative law and governance. Sufficient time has elapsed since the inauguration of the office to assess the Ombudsmanâs performance and contribution. As Emily OâReilly put it following her election by the European Parliament: â[t]wenty years after the Office of the European Ombudsman was created under the Maastricht Treaty, it is time to re-think its focus, with an eye to enhancing its impact and visibilityâ.2 In this context, the ultimate aim of this book is to contribute to this discussion.
To provide such an overview of the work of the office, the book analyses the European Ombudsmanâs method: how has the latter managed to achieve tangible results and provide redress to complainants in a large number of areas of administrative activity? This method has included both proactive initiatives, such as own-initiative inquiries, as well as responding to specific complaints, which naturally constitutes the area where most resources are invested. Insofar as the critical assessment of the mandate is concerned, the book identifies the limitations or challenges of the present mandate, and then attempts to discuss proposals for improvement.
As an accountability mechanism, the Ombudsman is related and has contributed to the EUâs democratisation. To give one example, the Ombudsman is generally considered one of the most prominent EU actors pushing for greater transparency (and this contribution is explored in a separate chapter of the book). Likewise, when acting proactively with a view to safeguarding individualsâ rights or the principles of good administration (the drafting of a European Code of Good Administrative BehaviourâECGABâis a suitable example here), the Ombudsman is bringing citizens closer to the administration. The Ombudsmanâs work in areas such as openness, transparency, participation and efficiency,3 and the publication of non-binding principles of good administration which go beyond the institutionsâ legal obligations are not the only reasons why authors have observed the Ombudsmanâs potential to render EU governance more accountable. Indeed, âlife beyond legalityâ also means softer instruments of redress, absence of locus standi requirements, own-initiative inquiries, in brief, conducting work and undertaking initiatives that the Court cannot undertake.4 That being said, the European Ombudsmanâs method is primarily characterised by an approach based on law. This involves not only regular reliance on the case-law of the Court, but also occasional attempts to interpret the law when the Union judiciary did not have the opportunity to clarify a matter. Simultaneously, it has been made clear by the Ombudsman that maladministration is broader than illegalityâthe content of the aforementioned ECGAB is indicative of this approach.
European Ombudsman cases or initiatives are increasingly being cited by accounts discussing the EU administration, accountability5 and the rule of law.6 Simply put, there is growing interest to identify âwhat the Ombudsman had to sayâ on a specific area of EU administrative activity. The book shows that the multi-dimensional work of the Ombudsman has been, at times, rather ambitious. This account also unravels the plethora of principles or arguments related to the notion of âgood administrationâ via a closer examination of cases decided by the office. In fact, it is the Ombudsmanâs generally positive record to date, and the measurable outputs that have been produced in the area of EU law and governance that justify the exploration of her or his potential to further improve accountability and democracy. What makes the European Ombudsman a particular, but no less interesting institution7 (for those willing to look beyond enforceability, of course) is the almost inevitable balancing exercises that have to take place within at least two dualities. On the one hand, a potentially very broad field of activities, clearly going beyond legality (that is particularly so in the EU as the Ombudsman has endorsed a broad definition of maladministration), has to be balanced with non-enforceability (which could occasionally mean reputational consequences for the office if the institutions refuse to comply). On the other, the provision of meaningful redress to individual complainants has to be balanced with the promotion of broader public interests and, more generally, improvements in the standards of the EU administration, often further to identification of systemic problems.
Insofar as the proposals for reform of the mandate are concerned, which constitute the last part of the book, it may be wondered what more could the European Ombudsman really achieve towards the improvement of the EUâs democratic credentials. After all, it is an institution with limited resources and staff. To view the powers of the EU institutions and bodies as a static phenomenon would, of course, disregard the various chapters in the evolution of the institutional structure and/or the administrative system of the Union.8 To take the obvious example (and the institution often perceived as closely associated with the Ombudsman), the European Parliament in the early days of European integration was perhaps considered a forum of symbolic value. And yet, owing to the progressive accumulation of power throughout the treaty reforms, the Parliament is now in most areas the âco-legislatorâ, and simultaneously the centre of scholarly attention when discussing the democratic performance of the Union. Moreover, the aim of the book is to provide pragmatic proposals; it is well known that institutional reforms in the EU usually take years of preparation, negotiation and implementation. This is why many of the proposals advanced here concern the practice of the office within the confines of the existing mandate. Equally important, it is emphasised that a reform of the mandate and practice of the Ombudsman can only be âpart of the parcelâ, in that such a reform alone cannot of course âcureâ the EUâs democratic shortcomings. It could also be the case that some observators are (still) sceptical about ombudsman institutions in general, if not unwilling to look beyond the inability of public sector ombudsmen to produce binding decisions. Yet it is widely understood that extra-judicial redress mechanisms do matter, and in this sense ombudsman institutions, despite their different origins, aims and mandates,9 perform an indispensable constitutional function10 which complements the judicial avenue.
In this context, the book makes a twofold contribution to the broader literature on EU law and governance. First, it offers a much needed insight into the depth of the work of the European Ombudsman and her or his method, more than 20 years since the establishment of the institution. In so doing, it examines her or his role not only from the perspective of EU administrative law, for example the monitoring of the requirements of the right to good administration under Article 41 of the Charter (a right which was adopted further to the Ombudsmanâs initiatives), but also from the perspective of good administration and good governance, for example the principles of good administration as they appear in the ECGAB, own-initiative inquiries, inter-institutional collaboration, relations with peers within the European Network of Ombudsmen, citizensâ participation and involvement of civil society. The book unravels the varied level of responsiveness of the European administration to citizens through the lens of Ombudsman inquiries. By exposing the main areas under investigation, as well as the Ombudsmanâs arguments and the responses of the institutions in some detail (this is done, in particular, in Chaps. 4 and 5, and to a lesser extent in Chap. 6), this account also aims to provide the reader with an overview of the subject matters that the Ombudsman can investigate and, consequently, of the areas that citizens, legal persons, and civil society actors can complain to the Ombudsman. Related to this, citizens and stakeholders will find out more about the Ombudsman process and the available instruments that can be used with a view to achieving successful outcomes. In the authorâs view, perhaps with the exception of the better-known transparency and access to documents cases, several further areas of supervision are notâyetâwidely known. The insufficient awareness of the Ombudsmanâs mandate has also to do with the fact that the latter cannot consider complaints at the domestic level, even when national authorities are implementing EU law.
Second, by moving beyond the examination of the Ombudsmanâs present mandate and considering proposals for reform, the book effectively claims that the need for further democratisation of this supranational edifice means that it is necessary to advance proposals for reform which do not exclusively cover the most prominent EU institutions. Where these proposals should be based on? The book relies on the shortcomings or limitations of the existing mandate, as they unravel throughout the subsequent chapters. For example, in Chaps. 4 and 5 it will be shown that, despite numerous achievements, the Ombudsman has not been as effective as he or she might have wished in specific sensitive complaints. Thus, this book is not a comparative exercise across the member states11 in order to find some common or minimum denominator. As already mentioned, the particular features of the EUâs institutional and administrative design (including multi-level governance and the proliferation of networks12), let alone the absence of a traditional, tripartite, separation of powers, would not leave much scope for such normative comparative exercise. Simultaneously, nonetheless, it is accepted that the broader confines of ombudsman institutions, despite their differentiations in terms of mandate and function, set the outer limits of these proposals. To provide an obvious example, it is clear that a public sector ombudsman office, including when operating at the supranational level, should not be granted enforceable powers as this would affect the very nature of the institution. In this sense, where references to certain features of domestic similar bodies are made in this book, these should be viewed as a valuable, but by no means definitive (in terms of providing ...