6. The impact of the European Ombudsman: breaking down barriers to procedural legitimacy
| Pages | 220-270 |
| Author | Melanie Smith |
6 The impact of the European
Ombudsman: breaking down
barriers to procedural
legitimacy
The impact of the European Ombudsman1 on the role of Article 226 is
important in relation to three of its functions: as a forum for citizen–
institution interaction; as an administrative and regulatory tool; and as a
forum of debate, control and accountability in which other institutional
actors may attempt to control the discharge of public power by the
Commission when it exercises its guardian function. These aspects of
Article 226 are left largely unexplored by the Commission’s policy
statements, but are nonetheless crucial if the role of Article 226 can be
explained with reference to principles of good governance and legitimacy.
Although the Commission has encouraged citizens to play watchdog over
Member States’ compliance with Community law for some time,2 until the
intervention of the Ombudsman there was relatively little structure to the
way in which the Commission dealt with citizen complaints. The
administrative interaction with citizens went largely unrecognised as an
area that required any regulation. In the light of the Commission’s approach
to good governance and legitimacy in the WPG (based on technocratic and
procedural legitimacy), it is important to consider to what extent procedural
legitimacy has in fact been realised within the operation of Article 226,
since the Commission’s own proposals seem to focus upon technocratic
legitimacy and the executive/enforcement function of Article 226.
As the institution that promotes good administration within the EU, the
Ombudsman has focused upon engendering a culture of good
administration within the administration of Article 226. He has done this by
developing some concrete principles that the Commission has agreed to
apply in the handling of infringement complaints. The Ombudsman’s Code
of Good Administrative Behaviour provides a detailed explanation of the
concept of good administration.3 The Code acts as a template which should
guide the interaction between institutions and citizens and in doing so
creates an environment where procedural legitimacy might flourish. The
impact of the Ombudsman within the administrative process of Article 226
has been important on two distinct levels: first, as a conduit for the redress
of citizen grievances and increasing the procedural legitimacy of the
administrative function of Article 226; and second, in providing an insight
into the actual practice of the Commission in respect of infringement
investigations outside that of the Commission’s statements in the Annual
Monitoring Reports and Communications.
This chapter will be structured as follows. The first section outlines in
brief the mandate and functions of the Ombudsman. The second section
analyses what the Ombudsman has managed to achieve with regard to the
administration of infringement investigations, by considering a number of
significant complaints relating to Article 226. The third section presents a
detailed case study of a complaint to the Ombudsman regarding the
administration of an infringement complaint, in order to provide a deeper
examination of the Commission’s handling of citizen complaints and
highlight the types of problems that result from a lack of procedural
protections for citizens. The fourth section provides an overview of the
results of the Ombudsman’s intervention by examining the soft law code
developed by the Commission in response to the Ombudsman’s criticisms.
The fifth section considers the development of procedural legitimacy in the
administrative phase of Article 226. Finally, this chapter ends with some
concluding remarks about the Ombudsman’s achievements and future
opportunities for improvement in terms of good governance and legitimacy.
AN INTRO DUCT ION TO T H E OF FICE OF
THE EURO PEAN OMBU DSMA N
The Office of the European Ombudsman, which became operational in
1995, was created by the Treaty of Maastricht and is governed by Articles
22 and 195 EC.4 According to Article 195 EC, any citizen of the Union and
any natural or legal person residing in the Union can complain to the
Ombudsman regarding instances of maladministration in the activities of
the Community’s institutions or bodies (except the European Court of
Justice (ECJ) and Court of First Instance (CFI) acting in their judicial
roles). The Ombudsman has two methods of administrative reform at his
disposal; he may either conduct inquiries in response to complaints, or
investigate institutions on his own initiative.5 The Ombudsman has had
considerable scope to define his mandate by controlling the definition of
what constitutes maladministration and designing the Office’s
implementing provisions. Maladministration was originally defined by
Jacob Söderman, the first Euro-pean Ombudsman, as ‘occur[ing] when a
public body fails to act in accordance with a rule or principle which is
binding upon it’.6 Both the European Parliament and Commission accepted
this definition, although the Ombudsman considers the definition a flexible
one rather than a strictly binding precedent.7
Powers and process
The primary focus of the Ombudsman is complaint handling, and once a
decision to investigate a complaint has been made, there are several
possible outcomes. The Ombudsman may find that no maladministration
has occurred; this either totally exonerates the institution’s conduct by
finding no maladministration or contains a further remark, which identifies
an opportunity for the institution to improve its administration in the future.
If the Ombudsman finds that maladministration has occurred, he may
attempt to negotiate a friendly solution between the parties, or the
institution may decide to settle the issue with the complainant directly. If
such a solution is not possible, then the Ombudsman issues either a critical
remark or a draft recommendation to the institution concerned. The critical
remark indicates that the complainant was justified in making a complaint
and that the institution acted wrongly, but it is no longer possible to remedy
the mal-administration. In this case, the instance of maladministration has
no general implications for the institution and requires no further action.
The draft recommendation is issued when the Ombudsman feels that the
institution can rectify the instance of maladministration, and it is a
particularly serious instance of maladministration or has general
implications for the administration of the institution. The institution must
respond to the Ombudsman within a period of three months. If the
institution does not respond satisfactorily, the Ombudsman may send a
special report to the European Parliament, including recommendations for
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