JACOB SÖDERMAN
THE FIRST OMBUDSMAN IN THE EUROPEAN UNION 1995 - 2003

The Maastricht treaty (1992) introduced a new 138e Article, which established an Ombudsman elected by the European parliament to deal with European citizens complaints concerning “instances of maladministration” in the activities of the Community institutions and bodies that is what the citizens might call the administration of the European Union.

What is bad and what is good administration?

One of the first problems concerning the Ombudsman's powers and mandate was to find an adequate answer to the question: "What is maladministration?" Neither the Treaty nor the Statute defines the term

An argument was presented saying, that questions of legality were reserved for the courts and that the Ombudsman should focus only on administrative problems for which no judicial remedy existed. One could also note opposition to the Ombudsman assessing whether discretionary powers had been used within the limits of the authority conferred on the decision-maker.

The outcome of the negotiations leading to the Maastricht Treaty was that the European Ombudsman was based on the model coming from Denmark , where the Ombudsman acts almost like an administrative court. The answer to the first question thus did not seem difficult.  It is good administration to follow the law and it is definitely maladministration not to follow the law.

Very few ombudsmen in the Member States work on the basis that they should not normally deal with cases that could be presented to the judiciary. To me it appeared to be only good if administrative disputes could be solved without going to court, as the courts are normally overburdened with cases. Naturally the citizen should always have the possibility to go to the courts, if he or she so wishes. and subsequently courts would always have the final say.

Even when the administration has been entrusted with a large margin of discretion, it must still respect the principles of European administrative law, upheld by the Court of Justice, when using its discretionary powers.  These legal principles thus set the boundaries within which the decision-maker may exercise discretion. Otherwise the institutions would not have discretion, but arbitrary powers and could act in a dictatorial way. This should not happen in a society where the rule of law prevails.

The ongoing discussion about the meaning of maladministration led the European Parliament, in its resolution on the Ombudsman's Annual Report for 1996 , to encourage the Ombudsman to define the term clearly in his next Annual Report. The same resolution also encouraged the Ombudsman to make full use of the mandate conferred on him by the Treaties to deal with maladministration in the activities of the Community institutions and bodies.

In first Annual Report for the year 1995 , I explained the meaning of maladministration by saying that” there is clearly maladministration if a Community institution or body fails to act in accordance with the Treaties and with the Community acts that are binding upon it, or if it fails to observe the rules and principles of law established by the Court of Justice and the Court of First Instance.”

I added that the Ombudsman must take into account the requirement of Article F (now Article 6) of the Treaty on European Union that Community institutions and bodies are to respect fundamental rights. The Annual Report for 1995 also included a list of examples of maladministration. This list was not meant to be exhaustive as it appeared better not to attempt a rigid definition of maladministration, which is an open-ended term.

As clear limits to what may be counted as maladministration, I mentioned that decisions of a political nature, as for example the work of the European Parliament or its organs, are excluded.  I also explained that it is not the Ombudsman’s task to examine the merits of legislative acts such as regulations or directives. The Treaty itself rightly excluded the judicial activities of the Community Courts from the Ombudsman’s mandate.

After consulting the national ombudsmen in the Member States about their notion of the term maladministration, I made a proposal in the Annual Report for 1997 to define the term maladministration in the following way:

“Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it.”

The relevant part of the 1997 Annual Report (chapter 2, pages 22-27) includes background information and explanations relating to the definition, concerning among other things the principle of rule of law, the lawful use of discretionary powers and limits in supervising contractual disputes . The definition includes respect for human rights and fundamental freedoms, as already stated in the Annual Report for 1995.

In its resolution, the European Parliament accepted the definition of maladministration that I had presented.   In the plenary debate on the Ombudsman's Annual Report in the European Parliament, the Member of the European Commission Anita GRADIN responsible for relations with the European Parliament and the Ombudsman also welcomed the definition.

The dispute over the term maladministration was thus solved. From time to time, questions have been raised in ignorance of the deliberations and reasons that led to the above definition, which was accepted by the European Parliament as the body responsible for dealing with the Ombudsman’s reports.  However, once the representatives of the institution or body concerned have received appropriate information on the matter, they have agreed to cooperate in the Ombudsman’s inquiries.
 Looking for a code of good administration

At the European level, an important initiative towards a code of good administration was taken by Roy PERRY MEP, the rapporteur for the Committee on Petitions, which called in its report on its activities in 1996-7 for clear standards of service to citizens by Community institutions and bodies. 

In June 1998, the biennial congress of the European lawyers’ association FIDE was held in Stockholm. As general rapporteur for the theme "The citizen, the administration and Community law", I raised among other things the need for a code of good administration and gave information about the ongoing preparatory work in the European Commission.   Many of the participants who spoke at the congress emphasised the urgent need for such a code and suggested that the Ombudsman should take the initiative to draft a standard code for the Community institutions and bodies to consider.

In the letter to the Community institutions and bodies I outlined the substantive, procedural and further obligations a code might contain and asked them to respond by February 1999.

Most of the institutions had a favourable attitude to such a code. Accordingly my Office drafted a model code of good administrative behaviour and recommended it to all the institutions and bodies later in 1999, adding that I planned to make a special report to the Parliament about the matter in 2000.

The Commission and the European Parliament’s administration and later the Council each adopted their own slightly different codes. Most other institutions and bodies adopted codes following the model code.

 The matter was then put before the European Parliament in 2000 in a special report.   Parliament adopted a resolution approving the Ombudsman’s Code of Good Administrative Behaviour, with some useful amendments, and urged the Commission to draft a regulation on the matter. 

You can find the Code of good administration at the European ombudsman website www.euro-ombudsman.eu.int in the official EU languages.
 
The European parliament considered  in its resolution on the annual report on the activities of the European Ombudsman 2000, that the Ombudsman should apply the principles in the code of good administrative behaviour in his work
 
 "so as to give effect to the citizens’ right to good administration in Article 41 of the Charter of Fundamental Rights of the European Union."

In the end, there was overwhelming support in Parliament for both resolutions, but in the Committee on Legal Affairs (which gave an opinion to the Committee on Petitions) there was a heated debate on some of the articles and on the need for the whole Code.

A MEP from Scotland intervened and said: "there are two important issues at stake here. First of all the rule of law and second showing respect for European citizens". After this remark and a wise summing-up speech by the draftsman Jean-Maurice DEHOUSSE, the code achieved the necessary support.

Article 41 of the Charter of Fundamental Rights establishes the citizens’ right to good administration. To me, the natural step forward would be for the European Commission to draft an EU law on good administration to upheld and promote the significance of that fundamental right.

Let me add that it would be easy for the EU to do that, since its institutions and bodies follow the principles anyway.

A modern EU law on good administration would surely be seen as the Union reaching out to its citizens and leaving its bureaucratic past behind.