Refashioning the Administrative Ethos of the European Bureaucracy :

The European Ombudsman’s paradigm    

Dr Alexandros TsadirasAssistant Professor in EU LawEuropean University Cyprus

Structure:

A. The role and mission of the European Ombudsman

B. The infringement procedure of EC Treaty Art. 226

C. The EU recruitment procedures

D. Contracts and grants

E. Public access to information and documents

F. The Code of Good Administrative Behaviour

G. Concluding remarks

A. The role and mission of the European Ombudsman

1 .Established in 1992 and became operational in 1995

2 .Seat: Strasbourg, France

3 .Mission: to investigate instances of maladministration in the

activities of European Community institutions and bodies, with the

exception of the Court of Justice and the Court of First Instance acting

in their judicial role.

5 .Remedial powers:

i) friendly solutions

ii) critical remarks

iii) draft recommendations

iv) special reports

v) annual reports

4 .Initiation of investigations: reactive / proactive

No coercive powers

B. The infringement procedure of EC Treaty Art. 226

1 .The procedure: The main path through which the Commission (the main administrator of the European Union) ensures that the Member States of the European Union respect their legal obligations

under European Community law .

2 .The judicial orthodoxy: The European Court of Justice (i) refused to recognise procedural rights to individuals as they are not formally seen as parties to the infringement procedure and (ii) left the Commission with a wide margin of discretion as to its final

decision .

4 .Two categories of commitments

i) The first pertains to the relationship between the complainants

and the European Commission .

ii) The second relates to the interaction between the Commission

and the Member States .

3 .The improvement: The creation of a series of commitments

which the European Commission ought to honour when dealing with

citizens’ grievances about infringement of EC law by Member

States .

5 .The first category of commitments

The Commission has agreed to :

i) register the complaints and inform the complainants accordingly;

ii) keep the complainants informed of the action taken in response to

their complaints ;

iii) conclude the investigation of complaints within one year save in

exceptional circumstances; and

v) provide the complainants with sufficient information and time to

prepare and submit observations before the closure of their case .

6 .The second category of commitments

The European Commission has undertaken to :

i) persist in its efforts to obtain replies from the Member States ;

ii) make sure that the recalcitrant Member State puts an end to the

alleged infringement; and

iii) pursue its investigative role with due diligence and impartiality .

C. The EU recruitment procedures

1 .The procedures: They comprise (i) the selection procedures and competitions, either open or internal, for the filing of auxiliary, temporary or permanent staff posts, (ii) the traineeships with Community institutions and bodies and (iii) the secondment of

national experts .

2 .The improvements :

i) Lifting the veil of secrecy of recruitment competitions.

ii) The abolition of age limits.

3 .Lifting the veil of secrecy of recruitment competitions

The European Commission has agreed to :

i) permit applicants to take the written questions with them from the

examination room;

ii) communicate the evaluation criteria to applicants who so request;

iii) inform the applicants of the names of the members of the

Selection Board; and

iv) allow applicants access to the corrected copies of their own

examination scripts.

4 .The abolition of age limits

i) Following the pressure exerted upon them by the Ombudsman,

the Commission and the Parliament announced in April 2002 their

decision to abolish age limits for the recruitment procedures they

run .

ii) EPSO’s competitions impose no age limits .

D. Contracts and grants

1 .This type of case pertains to the administrative and financial

handling of contracts that the Community administration concludes

with a view to (i) purchasing goods and services required for its

smooth functioning and (ii) managing funds under a range of

programmes .

2 .The improvements :

i) Tackling the problem of late payment;

ii) Remedies available to unsuccessful bidders in tender procedures;

iii) Compensation .

3 .Tackling the problem of late payment :

The Commission responded positively to an inquiry initiated by the

Ombudsman and presented a series of initiatives that would simplify

and improve its procedures, including a commitment to submit 95%

of all invoices for payment within 60 days .

4 .Remedies available to unsuccessful bidders in tender

procedures

The Commission has put in place a system which :

i) enables unsuccessful bidders to be rapidly informed of the

outcome of the bid process; and

ii) gives them reasonable time before the conclusion of the contract

to inquire into the grounds on which the award decision is based and

judicially challenge it, if they so desire .

5 .Compensation :

Considerable sums of compensation have been awarded to

complainants for the damage or distress they have suffered as a

result of the inappropriate or unlawful behaviour of the Community

administration in contractual cases .

E. Public access to information and documents

1 .This type of case concerns the treatment by the Community

administrative authorities of requests for public access to information

and documents they possess .

2 .The improvements :

i) The introduction of rules regulating access to documents.

ii) The creation of registers of documents .

3 .The introduction of rules regulating access to documents

Through a series of investigations the Ombudsman paved the way

for the introduction of clear and publicly available norms regulating

the access of the wider public to documents held by Community

authorities .

4 .The creation of registers of documents

Following the Ombudsman’s investigations the European

Community administration has established registers of documents

which are drafted or held by them. The Ombudsman made sure that

such registers exist and are available to the public .

F. The Code of Good Administrative Behaviour

1 .The text

The European Code of Good Administrative Behaviour brings

together in a clear and concise manner the basic principles which

the European administration ought to respect when dealing with

European citizens. Those principles derive from the case-law of the

European Community courts and the various administrative laws of

the Member States of the European Union .

2 .The provisions

The Code of Good Administrative Behaviour is composed of 27

articles and provides for a number of substantive and procedural

principles of European administrative law, such as lawfulness,

absence of discrimination, proportionality, absence of abuse of

power, impartiality and independence, objectivity, legitimate

expectations, fairness and courtesy .

G. Concluding remarks

1 .The proactive capacity

It is worth noticing that the aforementioned improvements to the

administrative ethos of the European Union administration have

been achieved through the initiation by the European Ombudsman

of a series of own initiative investigations which gave uniform and

centralised expression to concerns about systemic administrative

malfunctioning previously voiced in ‘scattered’, individual complaints .

2 .The norm-creating ability

It should be born in mind that the improvements analysed above

attest to the Ombudsman's ability to create progressively a number

of norms that may not be relied upon before the courts, but are

however deemed to restrain the administrative activity of the

Community authorities .

THE END