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Journal of European Public Policy

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Between parliamentary control and the rule of law:

the political role of the Ombudsman in the European
Union¹
a
Paul Magnette
a
Institut d'études européennes , University of Brussels , Belgium
Published online: 04 Feb 2011.
To cite this article: Paul Magnette (2003) Between parliamentary control and the rule of law: the political
role of the Ombudsman in the European Union¹, Journal of European Public Policy, 10:5, 677-694, DOI:
10.1080/1350176032000124032
To link to this article: http://dx.doi.org/10.1080/1350176032000124032
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Journal of European Public Policy 10:5 October 2003: 677–694
Between parliamentary control and

the rule of law: the political role of
the Ombudsman in the European
Union1
Paul Magnette
Downloaded by [Universitat Politècnica de València] at 03:04 14 October 2014
ABSTRACT The European Ombudsman is a new kind of ‘agent’, whose status

and role remain unclear. On the one hand, it is formally a parliamentary body,
designed to strengthen the control of EU institutions and administrations by MEPs;
on the other hand, the profile and role of this organ is close to that of a court.
This article argues that the hybrid nature of this organ is the reason for its success.
The powers of the Ombudsman, limited as they are, give him the opportunity to
combine the instruments of parliamentary scrutiny and judicial control in an
original way. As such it is well equipped to scrutinize those agents which cannot
be submitted to classic parliamentary controls without losing their independence,
and thereby helps to reconcile executive delegation with parliamentary democracy.
KEY WORDS Accountability; European governance; Ombudsman; parliament-
ary scrutiny; rule of law; transparency.
It has become commonplace to say that parliaments alone can no longer hold
the state apparatus accountable, in a context of increasingly complex and
technical ‘governance’. The European Union (EU) is confronted with that
problem, more than any other national political system (Joerges and Dehousse
2002; Harlow 2002). Its competence, which is often technical and based on
expertise, implies that new forms of political control should be invented
(Majone 2001). Its intricate institutional system, in which the European
Parliament (EP) does not play the same central role as national parliaments,
necessitates complementary modes of political accountability (Lord 1998).
The nature of this problem explains the creation of the European Ombuds-
man in the Treaty of Maastricht. This organ illustrates a new trend in the
legitimization of the Union, which consists in subjecting ‘all of the Union’s
institutions to standard sets of rules and procedures, or scrutiny by agents who
are dedicated to a single task but responsible for applying it across the entire
EU institutional system’ (Peterson and Shackleton 2002: 366).
The nature of this new kind of ‘agent’, however, remains unclear. On the
Journal of European Public Policy
ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd
http://www.tandf.co.uk/journals
DOI: 10.1080/1350176032000124032
678 Journal of European Public Policy
one hand, the Ombudsman is formally a parliamentary body, designed to
strengthen the control of EU institutions and administrations by Members of
the European Parliament (MEPs); it illustrates a classic logic of parliamentary
accountability. On the other hand, the profile and role of this organ is close
to that of a Court. It is addressed by individual complainants and it defines
and applies ‘general principles’ to solve the cases submitted to it; as such, it is
one of the organs designed to guarantee the respect of the rule of law.
The hybrid nature of this organ is, I will argue, the key to its success. The
powers of the Ombudsman, limited as they are, give him the opportunity to
combine the instruments of parliamentary scrutiny and judicial control in an
original way. Moreover, given the hybridity of its status and role, the Ombuds-
man is well equipped to scrutinize those agents that cannot be submitted to
classic parliamentary controls without losing their independence, and thereby
help to reconcile delegation with parliamentary democracy (Lindseth 2002).
WHAT IS AN OMBUDSMAN?
As is well known, the Ombudsman is a Swedish invention. What is usually
less well known is the fact that this old institution has adapted to the great
transformations of the political system before spreading all over the world.
This long genesis explains its hybrid nature and its peculiar style of action.
Its history can be divided into three main periods. First, the Ombudsman
appeared originally in an era of authoritarian monarchy (1809) as an internal
authority within the executive power. The kings of Sweden had established it
to ensure that their administration would rigorously respect and implement
their laws. Ombudsmen were public officers set up to strengthen the authority
of the executive over the other powers. Second, later on, as the regime became
more parliamentary, the office was maintained but adopted a very different
role. In the second half of the nineteenth century, it progressively left the
sphere of influence of the executive to come under the control of the Riksdag,
and thus became one of the instruments of parliamentary control over the
executive. It is today still an essential element in the Swedish theory of
‘constitutional control’. Third, during the twentieth century, it acquired some
relative autonomy from the Members of Parliament and has eventually turned
into a means for citizens to control public authorities. Posing as the ‘defender
of civil rights’ against the arbitrariness of bureaucracy, it is no longer confined
to the horizontal relationship between authorities but is also part of the vertical
control of the state by citizens. As such, it combines the two basic dimensions
of accountability in democratic systems (Przeworski et al. 1999).
The institution of the Ombudsman spread in the second half of the
twentieth century well beyond the boundaries of its motherland.2 The Swedish
model was copied by the Nordic states (Finland in 1919, Denmark in 1955
and Norway in 1963) and by the Commonwealth countries in the early 1960s.
In most cases, the objective was to offer citizens the possibilities of out-of-
court actions against the administration’s decisions rather than reinforce the
P. Magnette: Political role of the Ombudsman in the EU 679
separation of powers. In other words, the Ombudsman was part of the new
concern for the rule of law, as much as of a renewal of parliamentary scrutiny.
Its wider diffusion, outside the sphere of the old parliamentary nations, started
in the 1970s and increased the vertical dimension of mediation. The constant
extension of the state’s fields of action, in parallel with the development of
economic regulation and social services, and the ever more liberal evolution of
political praxis, account for the success of the institution in the 1970s and
1980s. A good illustration of it can be found in the cases of Spain and Portugal
which became liberal democracies during this period. In both countries the
creation of an Ombudsman (proudly called Defensor del Pueblo in Spain and
Provedor de Justiça in Portugal) was made possible by the constituent assemblies

which had restored democracy and turned the new institution into one of the
key elements of the rule of law. Ombudsmen were granted extended powers
of inquiry and litigation, and were presented as the ‘guardians’ of the respect
for fundamental rights by the state, like the Constitutional Courts. Their
example was followed by the Polish and Hungarian constituent assemblies
after the fall of the Communist regimes.
Over the past few years, the fashionable novelty of the Ombudsman has
somewhat overshadowed his political role. After the example of the regions,
provinces, municipalities and federated entities, various public (transport,
communication and energy services) and private groups (businesses, news-
papers) have followed the same trend. But the prerogatives of these new
Ombudsmen do not reflect the archetypal function: many of them belong to
the body they are supposed to control and are only granted some relative
independence. Their power of inquiry and recommendation is variable. This
generates confusion about the meaning of the Ombudsman. In the political
sense of the term, an Ombudsman is a public officer whose action is centred
on public administration and who enjoys strong guarantees of independence.
His power is characterized by the non-binding dimension of his decisions –
contrary to national courts. The Ombudsman comes most frequently from
the Parliament which appoints and controls him, while theoretically preserving
his autonomy.3 Citizens – and Members of Parliament in France and the
UK4 – make complaints directly to him with no formal conditions and at no
cost. The independence of, and easy accessibility to, the Ombudsman largely
explain the success of this form of ‘soft justice’, as opposed to the length, cost
and formalism of traditional legal action.
This is undoubtedly proof of a phenomenon of constitutional convergence
in Europe. But in spite of the success of such a form of control, there are still
huge differences in the way the institution works in the EU member states.
Three countries (Germany, Austria and Luxembourg)5 have no Ombudsman
per se. The Defensore civico only operates at regional level in Italy.6 On the
contrary, the Nordic countries and Spain grant the Ombudsman a very large
field of competence (over military, judicial and even religious administrations
in some Protestant countries) and considerable means of inquiry – including
the right to bring civil, criminal, administrative and even constitutional
actions.7 In other European countries, the competence of the Ombudsman is
more limited – so that it excludes Court decisions and disputes between the
administration and its staff. He is not empowered to bring legal action either.
In short, the difficulties and hesitations encountered in the setting-up of the
office of European Ombudsman may largely be explained by these differences
in national civic cultures.
WHY A EUROPEAN OMBUDSMAN?

The idea of creating a European Ombudsman was first evoked in an EP
resolution in 1979, and the issue was raised again by the Adonnino Committee
(1985) which was appointed to explore ways of creating a ‘Citizens’ Europe’.
But it was not until the intergovernmental negotiations in 1990–91 which led
to the Treaty of Maastricht that the institution was established (Magnette
1997, 1999). The Spanish government had drafted an ambitious proposal
which was soon supported by Denmark. Basing their argumentation on their
national tradition,8 both countries contended that it was necessary to appoint
an Ombudsman in every EU country with the task of protecting respect for
individual rights and receiving complaints from citizens. This seemed all the
more important for Spain and Denmark as the possibilities of litigation were
notably restricted for European citizens given the narrowness of the ad hoc
mechanism enabling them to bring a direct action to the European Court of
Justice (ECJ).9 The other member states were more reluctant, as was the EP
majority. The EP had constantly presented itself as the guardian of citizens’
rights before the Council and the Commission, and a majority of its members
saw the Ombudsman as a potential source of competition. The Petitions
Committee already offered citizens the possibility of complaining, they argued,
and therefore made the establishment of this new mechanism redundant. In
the same vein, this line of argumentation was used in domestic debates in
Germany, Austria, Luxembourg and Italy. The Petitions Committee chair-
woman even declared that it was ‘a publicity manoeuvre that deprives citizens
of some of their rights’.10 In spite of this reluctance, the compromise proposed
by the Luxembourg presidency was finally adopted.
The Treaty of Maastricht reflects such hesitations. On the one hand, it gave
a very precise definition of the role of the Ombudsman, with no possibility
for him to play any significant political role. But, on the other hand, the
Ombudsman was under the direct authority of the Parliament which could be
inclined to give him a more political profile. He was to be appointed by the
EP after each election – by a majority vote.11 His resignation could be requested
and his power and means of action defined by the Parliament. The statute of
the Ombudsman, adopted by the EP in March 1994, reflected the will of the
MEPs to make the institution one of their instruments of control: the
Ombudsman can act either on his own initiative or on a complaint forwarded
by an MEP; his means of action and procedures are precisely defined and a
system of ‘communicating vessels’ ensures that he will not deal alone with
political questions that concern the Petitions Committee. It was very symbolic-
ally instituted that his place of work was to be in Strasbourg, the seat of the EP.
From the start, the European Ombudsman appeared as a vector of parlia-
mentary control over the executive – in the old Nordic constitutional tradition –
as much as the independent guardian of citizens’ rights. The appointment of
the first Ombudsman caused a bitter party controversy within the EP. A first
vote in the Petitions Committee resulted in a dead heat with the same number
of votes for the left-wing and right-wing candidates. A second vote had to be
organized, which left time for the two main political groups, the EPP and the
PES, to agree on the name of a single candidate. Jacob Söderman, who was
elected, had a political profile after a career as Justice and Social Affairs
Minister before becoming Finland’s national Ombudsman. His orientations in
the conduct of his mandate confirm that he has not confined himself to the
strict definition given by the Treaty, and he has played an important political
role with the support of the Parliament which elected him.
A MAGISTRATE OF INFLUENCE
In the first months, the Ombudsman was forced to adopt a low profile because
of the novelty of the institution and the controversy which marked its creation.
Complying strictly with the letter of the Treaties and statutes which defined
his function, he pledged allegiance to the Parliament which had elected him,
and was controlling him. In his first report, submitted after only a few months
of activities, he clearly declared that he would not tackle political questions
but would carefully examine the admissibility of complaints and study them
with caution. But he also specified that he did not intend to confine his
mission to mere instances of maladministration. ‘Given the background of the
establishment of the office’, he gave himself a ‘double mission’ – ‘both the
effective implementation of the rights of citizens at all levels of governance of
the Union, and transparency in the work of Community institutions and
bodies’ (European Ombudsman 1995: 5). Even if the allusion went unnoticed,
it heralded his intention to assume the double role played by the Ombudsman
in the Nordic tradition – he was to help individuals in their dealings with the
administration, and he also considered the possibility of promoting, on his
own initiative, the principles of transparency and accountability which are
inherent in the concept of ‘good administrative practices’. Since then, he has
repeatedly declared that, by proposing solutions concerning instances of
maladministration, his objective was not only to redress precise problems but
also to contribute to the ‘consolidation of an open, democratic and accountable
administration’ (European Ombudsman 1995: 24).
The dual nature of his jurisdiction, constantly alternating between individual
cases and general principles, much resembles the ECJ’s. But the Ombudsman’s
mission is very different from a judicial one – he has extended powers of
investigation and can conduct inquiries on his own initiative but cannot
impose any legal obligation. He can only submit draft recommendations,
sometimes accompanied with ‘remarks’ or ‘reform proposals’, to the institutions
suspected of maladministration but is not empowered to impose sanctions.12
To carry out his mission successfully, he must establish relations of mutual
confidence and esteem with the institutions he is in contact with. The
administration concerned is free to decide if it will follow his recommendations.
The only risk is that its ‘wrong-doing’ will be made public by the Ombudsman
and damage its public image. His coercive means are thus more uncertain than
those of a Court which can condemn and impose sanctions accompanied with
financial penalties and damages; but his capacity to choose his priorities and
make inquiries is larger than that of the Court. The apparent weakness of his
office can thus be turned into advantages in the institutional arena.

The Ombudsman has tried to maximize the quasi-judicial aspects of his
role by adopting strategies with the Community administration which are
similar to the conduct of the ECJ since the 1960s. He has often used the
pretext of specific cases to express general principles which, according to him,
should prevail beyond the specific circumstances of the cases at hand. In a
word, through his ‘decisions’, he has gradually established a ‘jurisprudence’
based on a teleological philosophy of ‘good administrative practices’ and even
‘good governance’. The fact is that he has no power to make his decisions
binding, but such apparent weakness may also be a source of diffuse power.
Unlike judges who are compelled to adopt a moderate tone in order to preserve
the legal authority of their decisions, the Ombudsman may, and often does,
exercise political pressure.
Moreover, he has the fundamental privilege of being able to conduct
inquiries on his own initiative, contrary to the ECJ judges. Whereas the Court
depends on the cases brought to it to develop its jurisprudence – which
explains why it is often seen as providing incomplete protection of fundamental
rights13 – the Ombudsman is free to determine his own priorities. He is
therefore in a position to adopt strategies which resemble those of a parliament-
ary inquiry committee. Until now he has used this discretionary power
cautiously. He has always justified his decision to conduct an inquiry by
referring to the increasing number of complaints on some very precise points.
In so doing, he poses as the ‘defender’ of citizens rather than the autonomous
custodian of some general principles. He has also imposed some constraints
on his activities by limiting the number of inquiries on essential questions to
two or three per year.
The Ombudsman knows that his position would amount to almost nothing
if he was not supported by hundreds of citizens who submit their cases to him
every year. Since he came to office, he has always adopted an open strategy of
communication, giving dozens of interviews and public conferences. He knows
that his power depends on a good public image and that the institutions
controlled by his services are all the more inclined to follow his recommenda-
tions if they think they are influenced by public opinion. The Ombudsman
openly confesses that his main objective is ‘to inform the people who might
have a real reason to complain about maladministration in the activities of a
Community institution or body of their right to complain to the European
Ombudsman and how to do so’. Though his communication strategy is aimed
at the general public, it is in fact centred on ‘targeting accurate information to
groups of potential complainants’ (European Ombudsman 1999: 281).
From the study of the 1,500 or more complaints received each year,14 we
can divide complainants into two categories. It must first be said that three-
quarters of these complaints are deemed inadmissible as they mainly concern
disputes with national administrations – in which case the Ombudsman is
forced to declare his incompetence.15 Ninety per cent of the cases come from
individuals and the remaining 10 per cent are divided among businesses (from
20 to 60 per cent, depending on the year), citizens’ associations (from 50 to

90 per cent) and MEPs (from 10 to 30 per cent).
These sources channel the Ombudsman’s type of work. He has first to
deal with individual complaints concerning the practices of Community
administrations, within the framework of precise administrative procedures.
On the other hand, a small number of complaints are lodged by organized
groups – firms, associations, lobbies, groups of journalists, often supported by
MEPs – which take the pretext of the case in an effort to modify the working
methods of the Union.16 The Ombudsman’s attitude does not vary much in
the function of the cases submitted. He makes no difference between minor
cases of maladministration which require only an ad hoc solution and real
‘affairs’ with political repercussions. His apparently formal approach follows
that of the Court: even if the complainants are not motivated by political
reasons, the Ombudsman often tries to highlight the ‘general interest’ dimen-
sion of the cases he receives, however insignificant they may appear a priori.
This is what happens with the numerous complaints about the relations
between the Commission and the staff who, directly or indirectly, work for
it.17 As it is the main Community ‘administration’, the Commission is, more
often than the other institutions, accused of unfair practices by its staff,
individuals or companies that work for it or benefit from its financial support.
The vast majority of cases have to do with the professional examination (the
‘concours’), work contracts, orders or subsidies, various questions relating to
the payment of private business services, etc. In such cases, the task of the
Ombudsman is to request information from the administration concerned,
conduct a further inquiry (if the possible origin of the case is the practices of
this administration), and find a solution when the two parties cannot reach a
satisfactory agreement. Frequently, the intervention of the Ombudsman is
sufficient to convince the administration concerned to take adequate steps to
resolve the matter, in cases of late payment or requests for information, for
example. The administration may sometimes refuse an agreement and may
thus receive a critical remark or ‘maladministration report’ with a ‘recommenda-
tion’ to find a solution.18 Relationships with the other institutions are generally
based on mutual confidence and co-operation, but the Ombudsman may
adopt a stricter and even openly political tone. After the Prodi Commission
came to office, he issued a severe warning to the new team who were suspected
of not taking his mission seriously enough.
If this unfruitful attitude becomes a general rule in the performance of the
newly installed Commission, it would rapidly destroy the achievements of a
fruitful and constructive co-operation in his dealings with complaints and
make the Ombudsman’s task of enhancing the relations between the
European citizens and the Community institutions and bodies impossible.
(European Ombudsman 1999: 213)19
FROM PARTICULAR CASES TO GENERAL PRINCIPLES: THE

TELEOLOGICAL APPROACH OF THE OMBUDSMAN

Such clashes are rare. The Ombudsman usually tries to convince institutions
in less tough terms. But the moderate tone he usually forces himself to adopt
does not prevent him from taking initiatives with considerable political
implications. In addition to the resolution of dozens of cases of maladministra-
tion – usually in the form of friendly settlements – the Ombudsman tries to
act in a preventive way. He may consider that recurrent complaints bear
witness to the inadequacy of some administrative practices which must
therefore be reformed. The Ombudsman’s position evolves then from that of
an ex-post redresser of disputes between administrations and individuals to a
more ambitious strategy of reform. Through the careful selection of cases
which he sees as symbolically important, he sets himself up as a power of
initiative and pressure in the continuous reform of EU governance. Some
examples may illustrate this strategy.
The fight against discrimination is one of the Ombudsman’s favourite
topics. After noting that many cases concerned the age limit problem in the
recruitment examination – limits denounced as discriminatory by some
individuals – the Ombudsman started an inquiry on his own initiative in
1998. He asked each institution to set out and justify their recruitment policy.
After studying and comparing national laws on the subject and international
texts on the protection of fundamental rights, he pointed out that some age
limits did not seem to be ‘objectively justified’. He based his argument on the
provisions of the treaties and on secondary legislation banning discrimination,20
and used ECJ jurisprudence as an argument in asking the Commission to take
the initiative of an institutional agreement for a complete ban on all age limits.
We should emphasize here the Ombudsman’s method rather than the content
of such an important decision – though it was important because it went
against established, widespread practice. Indeed, his services could just have
examined each case and proposed tentative solutions to the administrations
concerned. On the contrary, the Ombudsman decided to give a far-reaching
dimension to the problem. His method – studying national, international and
Community law provisions – and his choice of privileging the most ‘equitable’
rather than the most common solution resemble the ECJ’s inductive reasoning
used to establish the ‘general principles of Community law’.21
In the same vein, the Ombudsman conducted another inquiry in the same
year. Taking up an old tradition of the Court, he often stated general rules
relating to the ‘principles of good administrative practices’, though they were
not necessarily applicable to the case in point. Repeating an almost ritual
formula, ‘The principles of good administrative practices impose . . .’, he
progressively built up an implicit code of good behaviour from the study of
concrete cases. He drew up a list of unwritten rules drawn from public law
and administrative codes of conduct – acknowledging receipt of all inquiries,
replying to requests and taking action promptly, recording all documents in
registers and archives, taking into consideration all pertinent elements before
making a decision, reasoning and explaining decisions – which should always

govern the action of administrations.
He not only stated the principles, one after the other, but took the
opportunity of an inquiry to systematize his own ‘jurisprudence’ in the form
of a proposal for a written code of good administrative behaviour. He
established basic rules (legality, equal treatment, proportionality, legal security)
largely inspired by ECJ jurisprudence (Azoulay 2002; Kadelbach 2002) and
added formal rules, inspired by national public law and his own experience
(right of parties to be heard, time limits, notifications and motivations), and
even some rules of courtesy which should characterize, according to him, all
relations between the administration and the citizens (polite answers, apologies
about errors). In order to justify this initiative, the Ombudsman first evoked
his mission of ‘promoting good administrative practices’ and the official
declaration of ‘the Union’s commitment to democratic, transparent and
accountable forms of administration’ (European Ombudsman 1999: 222) –
this expression occurs again and again in the Ombudsman’s arguments. He
then explained that his inquiry proposed to determine whether such codes
existed in Community law. At that point it was strictly speaking an inquiry.
In a second stage he analysed the homogeneity of the few existing rules and
used the pretext of such incomplete and heterogeneous norms to put forward
his own proposal for a code with which administrations were strongly invited
to comply.
This code of good administrative behaviour has become the Ombudsman’s
favourite theme. He has presented his philosophy in public lectures before
Community law specialists, academics and judges, and in journals read by the
same public.22 In 2000, he pleaded his case in front of the members of the
Convention in charge of drafting the Charter of Fundamental Rights; as many
Convention members, mainly those from the Nordic countries, shared his
opinion (Braibant 2001), the code was incorporated in the Charter adopted
at the Nice Summit in December 2000. In less than five years, the Ombudsman
managed to codify the doctrine of good administrative behaviour and have it
incorporated in a Charter which is the expression of the Union’s fundamental
values and might be incorporated into the EU’s new treaty after the next
Intergovernmental Conference.
GUARDING THE GUARDIANS: PROMOTING TRANSPARENCY
AND PARTICIPATION IN ‘EUROPEAN GOVERNANCE’
In circles close to the European microcosm, some actors rapidly understood
how they could benefit from the Ombudsman’s interventions to further their
cases. Not all complaints lodged by companies, associations, journalists and
MEPs aim to influence the EU mechanisms, but it is the case for a few of
them. The economic actors who denounce cases of maladministration usually
aim at the Commission in its function as ‘the economic executive power’. As
the guardian of the Treaties, the Commission has always relied on the actions
brought by individuals and companies to ensure that national administrations
comply with Community law, notably in the area of competition and state
aids. But there was no legal means in the Community system for individuals
to ‘guard the guardians’. In infringement proceedings, the Commission alone
decides about the appropriateness of an action and can just as well decide not
to follow up an action brought by individuals. Such discretionary power has
never been challenged by the ECJ in spite of many actions for annulment
brought by firms against the Commission’s decision not to start, or to defer,
legal action, and despite repeated reminders by legal scholars to check the
Commission’s room for manoeuvre.
Since the Ombudsman came to office, some companies, judiciously advised
by specialized law firms, have seen him as a means of convincing the
Commission to abandon its tradition as a discretionary authority and be more
flexible as regards observations brought by third parties. Every year some
complaints involve the Commission’s decisions to drop legal actions. Many
citizens’ associations and lobbies, notably those among the most active environ-
mental groups, have adopted the same attitude. France’s nuclear tests in 1995,
for example, brought about some forty complaints from British environmental
groups. As they could not bring direct action against the French authorities,
they accused the Commission of not having enforced a provision in the
European Atomic Energy Community (EAEC) Treaty, which enables the
Commission to force the member state concerned to take complementary
health measures. The Ombudsman’s inquiry could not consider the appro-
priateness of France’s nuclear tests or the Commission’s decision not to enforce
Article 34 of the EAEC Treaty. It concentrated rather on the way the
Commission made its decision. Each year many similar cases deal with
Council Directive 85/337/EEC. The directive requires environmental impact
assessments in all public or private projects above a certain size. The complain-
ants who invoke this directive accuse the Commission of not having controlled
the application of the provisions by national authorities. In the same vein,
they also refer to another directive about the conservation of wild birds. In all
cases, the associations initiating these actions have first tried to act at national
level, then appealed to the Commission, before eventually turning to the
Ombudsman.
The Ombudsman’s role is, like that of the Court in the field of ‘administrative
law’, ambiguous. Theoretically, he examines the way the Commission makes
its decision not to bring infringement proceedings against a member state.
Though the control is only about the procedure, it may radically alter the
content of the decision. In fact, the difference between content and form is
very difficult to make out. When a company contests the Commission’s
authorization of state aid for a competitor, or when an association regrets that
the Commission has not brought an infringement proceeding against some
national authorities accused of violating Community law, the main objective
is to change the content of the decision. The Ombudsman tries to keep to the
formal aspect of the cases – his remarks mainly concern time limits, absence
of response, lack of motivation in decisions. But when he criticizes some aspect

of the procedure, he may touch upon the content of the decision. There have
been instances when the Ombudsman has accused the Commission of not
having ‘correctly assessed’ the situation before making a decision. He has based
his argumentation on the fact that the Commission examined some arguments
and not others.23 In another case, the Ombudsman reproached the Commission
with having failed to ‘really balance the interests of the opposing parties’.24
Under the pretext of a formal control, the Ombudsman may thus interfere
with the decision. If he can decide what information should be used and how,
what room for manoeuvre is there for institutions to make their decisions? It
is true that the Ombudsman’s caution has prevented such cases from happen-
ing – up till now – but the formal character of the control he exercises does
not ensure the neutrality of his interventions.
From isolated cases which can seem to be part of co-ordinated strategies by
complainants, the Ombudsman has, once again, tried to develop a more
general policy. In 1997 he undertook an inquiry on his own initiative about
‘the possibilities for improving the quality of the Commission’s administrative
procedures for dealing with complaints concerning Member States’ infringe-
ment of Community law in the period before judicial proceedings may begin’
(European Ombudsman 1997: 284). He noticed the frustration of individuals
who are informed by the Commission of its decision not to start, or to drop,
a legal action, and suggested that the procedure should be modified to allow
complainants to formulate their observations. In other terms, it means an
increase in ‘contradictory’ hearings of the two parties in an administrative
procedure which resembles a judicial one. In a normative tone, the Ombuds-
man pointed out
the two advantages of such a procedure. Firstly, it would most likely
contribute to a more effective administration, by giving complainants the
opportunity to criticise the Commission’s views and therefore give the
Commission the opportunity to respond to this criticism. Secondly, it would
enhance the citizens’ trust in the Commission by allowing them to participate
more fully in the article 169 procedure and thereby making these activities
more transparent.
(European Ombudsman 1997: 285)
In the name of efficiency, legitimacy and transparency, which he believes he is
the guardian of, the Ombudsman empowers himself with the right to suggest
procedural reforms which aim to increase citizens’ participation in administra-
tive procedures. The Commission is free not to take any notice but is under
pressure as the Ombudsman uses public conferences, his relations with his
national counterparts, and his privileged contacts with MEPs to argue that his
reforms are fully justified. Though he has no power to impose his suggestions,
he sets up a strategy of influence in order to challenge the Commission’s long-
standing tradition of secrecy.
Because of the numerous cases of ‘lack or refusal of information’ from
administrations each year, since 1996 the Ombudsman has also embarked
on a crusade for transparency. Some complaints had deliberately been lodged
before the Court by journalists and citizens’ associations about the develop-
ment of transparency (Grønbech-Jensen 1998). Troubled by the same kind
of complaints, in his second year in office, he started an inquiry about
citizens’ access to EU institution documents. Since the late 1980s, this theme
had been put on the agenda by the Danish and Dutch governments and
by Sweden and Finland after they joined the Union. ‘Transparency’ has
become one of the leitmotivs in the debate about the reform of the Union,
and the Treaty of Amsterdam was a decisive step as it states the subjective
right of citizens to access to EU institution documents. The Union’s institu-
tions have been reluctant to respect their obligations, and this has become
the Ombudsman’s ideal battleground. He first requested that Community
institutions and bodies inform him about their rules and regulations on the
subject, and warned them that ‘the fact of not adopting or of not facilitating
rules about public access to documents’ was ‘an instance of maladministration’.
He recommended the adoption of such a set of rules within three months.
In order to give more weight to his action, he wrote a special report on
the question and submitted it to the Parliament, which thanked him warmly
for his initiative. In the following year, he received other complaints about
lack of transparency, especially in Council proceedings. The complainants
used the Ombudsman while they also brought these cases to the Court of
First Instance (CFI). The Ombudsman notified the Council in 1997 that
he found its motivations to refuse access to documents unsatisfactory, and
asked it to keep a record of the measures taken concerning Justice and
Home Affairs policy. These recommendations, converging with the CFI’s
jurisprudence, were then accepted by the Council. In the same vein, he
recommended that the Commission keep a public record of the documents
produced in the framework of comitology, in order to facilitate access to
information. After new complaints, he conducted a further inquiry on his
own initiative in 1998 about four Community bodies which had not made
public their rules of access to information.25 He then embarked on a detailed
analysis of the replies given by the institutions concerned and notified them
of his position. While admitting that there could be legitimate exceptions
to the principle of transparency, he referred to the CFI jurisprudence and
insisted on the fact that such derogations should be strictly limited. For
example, he contested the interpretation of the European Central Bank (ECB)
which contended that the Governing Council minutes were not ‘administrative
documents’ which should be accessible to the public. The Ombudsman did
not go as far as demanding that they should be systematically made public –
which would have been an openly political intervention on his part – but
that some rules should be established to facilitate public access to the docu-
ments which the ECB wanted to keep secret.
Like the ECJ which has established the legal principles in the Community,
the Ombudsman has both stated and promoted the general principles which,
in his view, are an integral part of the notion of ‘good administrative practices’.
In the exercise of the ambitious mission of reforming European governance
that he sees as his task, the Ombudsman defends a demanding conception of
‘democracy’ which echoes Nordic constitutional traditions. All his actions,
whether they be the treatment of complaints or his own inquiries, follow the
same political logic. His aim is to consolidate the political accountability of
administrations by encouraging citizens to be more vigilant through three
structural principles:
1 transparency in the decision-making process – citizens can only control
institutions if they can follow their actions and have access to their
documents;
2 the development of written criteria of good administrative behaviour –
citizens can only contest public action if they can invoke formal criteria set
and applied by the authorities;
3 citizens’ participation in the decision-making process and the possibility of
litigation, even on administrative questions – information about public
action and the administration’s criteria would be meaningless if there were
no ways to challenge them.
All these actions are part of the same approach – attenuating the ‘authority
of decisions made’ by extending the principles of public information, delibera-
tion and control, which are the normative foundations of parliamentary
democracy, to the administrative sphere. The Ombudsman has seized every
opportunity to defend this conception of governance which he finds not
only more democratic but also more efficient. Echoing the argument of
‘deliberative democracy’, he opposes the frequently used argument that some
confidentiality should be preserved in the decision-making process and
declares:
What is really efficient for the Santer Commission to collapse in March,
leaving the Union’s activities badly hampered for half a year in the absence
of a lead from an active Commission? An important reason for the collapse
was what had been done behind the curtain of confidentiality. Furthermore,
experience shows that open administration, which is practised in Member
States, seems to be an effective tool against fraud and corruption, while a
closed and confidential handling of public affairs appears to provide opportu-
nities for fraud and corruption.
(European Ombudsman 1999: 13)
CONCLUSIONS
Although most observers were sceptical about the role of the Ombudsman after
it was set up by the Maastricht Treaty, the Ombudsman has since demonstrated
its utility. Making an inventive use of his apparently loose and weak powers, he
has given a stable and original profile to his office. The first appointed Ombuds-
man made use of his national experience, and good relations with the members
of the Commission and the Parliament, to invest his mission with high ambi-
tions. He knew his first task was to seek solutions to complaints from individuals
and solve individual cases of maladministration. But he also interpreted his
mission as making an exhaustive list of instances of ‘malfunctioning’ in European
governance and proposing remedies. On the one hand, acting like a Court, he
interpreted the cases submitted to him in a teleological way, in order to build a
demanding doctrine of ‘good administration’.26 On the other hand, acting as a
parliamentary organ, and with the strong support of the EP, he used his powers
of inquiry and proposition to suggest wide-ranging reforms of European govern-
ance. In so doing, he promotes the principles of transparency, participation
and explanation – underpinned by a philosophy of ‘deliberative’ administrative
action – which are also supported by the Court (Shapiro 2002).
With a view to strengthening his role, the Ombudsman has always given
priority to the defence of his own prerogatives, and to the promotion of the
institution of Ombudsman. In order to make his investigations more efficient,
in 1997 he suggested that the Commission should allow its staff to express their
views freely during his inquiries – whereas today they are only allowed to answer
questions according to their supervisors’ instructions.27 Two years later he asked
the EP to modify his statute and lift all remaining restrictions imposed on his
functions as an investigator. And his good and sustained relations with his
national or regional counterparts provide new opportunities for him to defend
and promote the institution of the Ombudsman at all levels of the administra-
tion, even beyond the legal boundaries of the Community.28
The Ombudsman has not yet convinced all the actors of European govern-
ance to follow his philosophy of good administration. But by combining quasi-
judicial actions and reasoning with parliamentary inquiries and political
propositions, he has at least demonstrated that the two classic paths of
accountability can be reconciled. As European governance relies ever more on
delegation and independent regulation, this new and hybrid form of scrutiny
may become ever more important.
Address for correspondence: Paul Magnette, Institut d’études européennes –

ULB, 39, av. F.D. Roosevelt, B–1050 Brussels, Belgium. email: pmagnet@
ulb.ac.be
NOTES
1 I thank Olivier Costa, Renaud Dehousse and Brigid Laffan for comments on an
earlier version of this paper.
2 See Revue française d’administration publique (1992) for a general review of the
statutes and practices of ombudsmen in Sweden, Finland, France, Spain, the UK,
Italy, Poland and other non-European countries. See also Marias (1994) for general
surveys of France, Spain, Portugal, Sweden, the UK, Ireland, Belgium and
Denmark. A systematic but more general comparison may be found in European
Parliament (1995). The Website of the European Ombudsman (http://europarl.eu.
int/ombudsman/home/en) offers links with the sites of the national ombudsmen,
where they exist.
3 He is appointed by the executive only in France and the UK. He is under the
responsibility of the Parliament in both countries.

4 The Délégués départementaux, who were created in France in the late 1960s, partly
make up for the impossibility for citizens to bring direct action. They can seek
advice from these ‘departmental ombudsmen’ who will transfer their complaints,
through the Members of Parliament, to the médiateur de la République.
5 In Germany, Austria and Luxembourg, the national parliamentary Petitions Com-
mittees play the role of Ombudsman. In these three countries, MPs seem to fear
that the creation of an ombudsman might jeopardize their control monopoly and
weaken their key role in civil life.
6 It should be noted that, in Belgium and Greece, national ombudsmen were only
created after the establishment of the European Ombudsman (respectively in 1995
and 1997) and that the close links that exist between the European Ombudsman
and the parliamentary Petitions Committees seem to have played an important
role in the propagation of this institution.
7 In Poland, in the very special context of the transition towards liberal democracy,
the Ombudsman is even empowered to bring an appeal to revise a judgment to
the highest national Court, which is one of the main reasons for the Ombudsman’s
spectacular success. On the experience of the first Polish ombudsman, see Letwoska
(1992).
8 On the importance of the ‘Danish model’, the only Nordic country at the
Intergovernmental Conference in 1990–91, see Heede (2000).
9 These restrictions have long been criticized from a doctrinal point of view
(Rasmussen 1980; Harlow 1992).
10 Viviane Reding (EPP, Luxembourg) who became a member of the European
Commission (Agence Europe, 16 May 1991).
11 National ombudsmen are generally elected with a very large majority and for
mandates which do not correspond to the parliamentary terms of office, thus
avoiding possibilities of partisan pressures. Because of the absence of clear majorities
in the EP, which obliges the two main parties to find compromises, such precaution
is unnecessary.
12 The ECJ does not have strong powers of sanction either. Its decisions must be
enforced by national authorities, and it is only on the request of the Commission,
after long procedures, that it can impose fines on the member state which fails to
observe its rulings.
13 Joseph Weiler considers that the judges’ dependence on the complaints lodged by
individuals is the main obstacle to ‘judicial activism’. See Weiler (1999).
14 The number of complaints received each year is constantly increasing, from 298
in 1995 to 1,557 in 1999. They correspond roughly to the populations of each
member state. Only countries hosting European institutions whose residents have
more frequent dealings with the Union’s administrations, and, to a lesser extent,
the Nordic countries which are more familiar with these procedures, show a
slightly higher ratio of complaints in relation to their populations. See Magnette
(1999).
15 In such cases, according to the principle of subsidiarity, he tries to advise
complainants to address the national or regional Ombudsman’s offices with which
he has developed close and regular links in order to create a ‘network of
Ombudsmen’ to cover all administrative levels.
16 Olivier Costa’s contribution in this issue shows that the same categories are to be
found among complainants to the ECJ. Statistics by the Commission and the
Council about information requests from individuals reveal the prevalence of the
same groups of actors.
17 Complaints against the Commission account for 70 to 80 per cent of the total
number of complaints received each year. There are also complaints lodged against
the Council, the Parliament and other Community bodies by their staff. The
number of these complaints is notably smaller but this is obviously owing to the
fact that there are fewer people who work for these institutions.
18 The Ombudsman concludes that there are no instances of maladministration in
about half the cases. From 10 to 30 per cent of complaints are settled in a friendly
or unilateral way by the institution, while 10 per cent of cases lead the Ombudsman
to send a ‘critical remark’ to the institution concerned. In less than 5 per cent of
cases, maladministration is found, which leads the Ombudsman to make a
‘recommendation’. The success of the first term of the Ombudsman (1994–99)
may be partly explained by the appointment of Mrs Gradyn, the Swedish
Commissioner who shares the same language and civil culture as Mr Söderman,
to the post of ‘correspondent’ of the Ombudsman. This has greatly facilitated the
adaptation of Commission services to the demands of the Ombudsman which
often require an important investment in time and human resources from the
Commission’s civil servants.
19 In his ‘further remarks’, the Ombudsman noted that it was an instance of
maladministration as the Commission had refrained from addressing the complain-
ant’s comments and the precise question that he had asked the institution.
20 New article 13, incorporated in the Treaty of Amsterdam in 1997, explicitly
outlaws any discrimination on the grounds of age.
21 See Simon (1991).
22 See Söderman (1998).
23 See the Ombudsman’s decision on the complaint (650/98(PO)GG) lodged
against the Commission’s decision to close an anti-dumping proceeding. The
Ombudsman found an instance of maladministration in the attitude of the
Commission which had not taken enough note of the evidence and arguments of
the complainant.
24 See the Ombudsman’s decision on the complaint (1057/25.11.96/STATEWATCH/
UK/IJH) against the Council. It must be noted that the Court of First Instance
had adopted the same reasoning in similar cases about individuals’ access to
Council documents. See Bradley (1999).
25 The Community Plant Variety Office, the Health and Safety in the Workplace
Agency, Europol and the European Central Bank.
26 His interpretation of the notion of ‘administration’ is, moreover, very broad – by
examining complaints about the way the Commission controls the application of
law, the Council’s practices in police co-operation or the internal workings of the
EP party groups, he has blurred the traditional frontiers between politics and
administration.
27 According to his usual strategy, the Ombudsman conducted an own-initiative
inquiry in 2001.
28 He regrets that some countries have no Ombudsman and has even suggested that
each member state should ‘have an obligation to ensure that its legal structure
includes an effective and appropriate non-judicial body to which citizens may
apply for this purpose’ (European Ombudsman 1998: 12), which is a clear case of
interference in ‘national constitutional traditions’.
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On: 14 October 2014, At: 03:04

Journal of European Public Policy

Between parliamentary control and the rule of law:

To link to this article: http://dx.doi.org/10.1080/1350176032000124032

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Between parliamentary control and

ABSTRACT The European Ombudsman is a new kind of ‘agent’, whose status

Provedor de Justiça in Portugal) was made possible by the constituent assemblies

WHY A EUROPEAN OMBUDSMAN?

office can thus be turned into advantages in the institutional arena.

20 to 60 per cent, depending on the year), citizens’ associations (from 50 to

FROM PARTICULAR CASES TO GENERAL PRINCIPLES: THE

TELEOLOGICAL APPROACH OF THE OMBUDSMAN

making a decision, reasoning and explaining decisions – which should always

of response, lack of motivation in decisions. But when he criticizes some aspect

Address for correspondence: Paul Magnette, Institut d’études européennes –

responsibility of the Parliament in both countries.

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