The role of the European Ombudsman is to investigate instances of maladministration in the activities of the EU institutions, bodies, offices and agencies. However, there is no legal definition of ‘maladministration’, neither in the Treaties nor in the Ombudsman’s Statute. Based on what standards or principles does the Ombudsman thus fulfil its role? This contribution aims to shed light on this question, including whether comparative law plays a role, using examples from the area of public access to documents.
What is ‘maladministration’?
The Ombudsman’s first annual report for the year 1995 said that there is clearly maladministration if a Community institution or body fails to act in accordance with the Treaties and with Community acts that are binding upon it, or fails to observe the rules and principles of law established by the Community Courts.The Report went on to say that ‘many other things may also amount to maladministration’ and gave examples, such as administrative irregularities and omissions, avoidable delay and lack or refusal of information.The list of examples concluded as follows: ‘(t)he experience of national ombudsmen shows that it is better not to attempt a rigid definition of what may constitute maladministration. Indeed, the open-ended nature of the term is one of the things that distinguishes the role of the Ombudsman from that of a judge’.
Today, the Ombudsman’s website features a description of maladministration which is very similar to that set out in the annual report of 1995. The list of possible instances of maladministration remains open-ended, and so is the understanding of what constitutes ‘good administration’, thus granting the Ombudsman a certain room for manoeuvre and flexibility for interpreting the concept in the context of its inquiries.
What the Ombudsman strives for is, in plain terms, an ambitious interpretation of the law – ‘ambitious’ in the sense that the Office must always seek to ensure that the public administration acts within the law but also in accordance with the more far-reaching principles of good administration, including those set out in the European Code of Good Administrative Behaviour. To this end, the Ombudsman may look at administrative practices across the EU administration, as well as at the national and international level. The Ombudsman’s drafting of the European Code of Good Administrative Behaviour itself is a case in point, as it benefitted, in 1999, from national examples of codes of good administration. While there is thus a comparative element in its work, the Ombudsman does not tend to conduct comparative analyses in a systematic way.
Public access to documents
Public access to documents is one of the core areas of the Ombudsman’s work. In 2022, the Ombudsman opened around 80 inquiries related to public access, which is about a quarter of all inquiries for that year. This is also reflected in the resources the Ombudsman dedicates to public access cases: a team of five inquiries officers currently deals with such cases (although not exclusively).
The area of public access to EU documents is governed mainly by Regulation 1049/2001, under which the Ombudsman is one of two possible remedies. Where an EU institution fully or partially refuses access to a requested document, the applicant may institute court proceedings or make a complaint to the Ombudsman.
When receiving complaints related to a refused request for access to documents, the Ombudsman inquiry team usually inspects the document(s) in question and examines whether the institution’s reliance on one or several of the exceptions to public access in Regulation 1049/2001 was reasonable. To this end, the inquiry team looks at the Regulation and the related case law.
An example illustrating this is a recent inquiry that concerned the European Commission’s refusal to disclose its correspondence with Danish authorities in a state aid file of 2005. The state aid file concerned the lawfulness of a job reinsertion scheme that involved state-subsidised employment. The applicant was a Danish trade union that sought access to the documents as part of its research regarding some companies’ possible misuse of the scheme.
In refusing access, the Commission relied on a general presumption of non-disclosure. This is a confidentiality presumption that the Court of Justice has established for certain areas of administration. It means that EU institutions can decide not to disclose documents without examining them to determine if the relevant exception under Regulation 1049/2001 applies. The presumption can, however, be rebutted and the complainant sought to do so in this case. The Ombudsman inspected the documents in question, which the Commission itself had not examined, and found that they were few, old, and contained no confidential information. The Ombudsman thus asked the Commission to assess the documents with a view to possible disclosure.After two attempts by the Ombudsman to resolve the case, the Commission ultimately agreed and disclosed the documents.
Even if, in other cases, an institution’s conduct is formally speaking in line with Regulation 1049/2001 and the related case law, the inquiry team, and ultimately the Ombudsman, may still find that it is not good administrative practice. The Ombudsman tries to find the most citizen-friendly interpretation of the law, or, as said earlier, an interpretation of the law that also complies with more far-reaching principles of good administration. In public access cases, this involves ensuring that the administration does not limit itself only to adhering to the strict legal minimum but rather applies the law in the most reasonable, proportionate, and citizen-friendly manner, taking into account all public interests at stake.
How does comparative law fit in?
A small comparative law element is probably inherent in the assessment of each case. The inquiry team is composed of inquiries officers with different educational and professional backgrounds from the EU Member States. They naturally bring to their analysis the legal traditions and understandings of their respective countries. It is rare, however, that the inquiry team actively conducts comparative research into different administrative practices when assessing the EU administration’s position or conduct in public access cases.
However, in specific instances the inquiry team may carry out comparative research. This is especially when the Ombudsman strives to identify, for example in the context of own-initiative work, ‘best’ or ‘good’ practices to enhance or benchmark administrative practices at EU level. To this end, the Ombudsman may draw on previous Ombudsman work and inquiries; compare practices of different EU institutions, bodies, offices, agencies; or take inspiration from national and international level, including by consulting the European Network of Ombudsman. Here two recent examples of this comparative research.
The first example is a strategic initiative into how EU institutions, bodies, offices and agencies record text and instant messages sent or received by their staff members in a professional capacity, which the Ombudsman launched in June 2021.
The starting point of this initiative was that the reality of modern electronic communication should be reflected in the EU administration’s document management rules and practices, so as to allow for adequate transparency of such ‘documents’. The idea was to identify good practices, which could guide the EU administration in dealing with this issue in the future.
To this end, the Ombudsman sent a detailed questionnaire to eight EU institutions, bodies, offices and agencies, to see if there are parts of the EU administration that have experience recording text or instant messages, and already have rules or practices in place. The results showed there was little in place at that time. In parallel, Ombudsman staff conducted research into relevant developments and practices at national and international level, including in the UK. As the team was aware that the recording of text and instant messages and their disclosure had in recent years been the subject of debate in several EU Member States, they also contacted several national ombudsman offices to see if they had any experience with or guidance on the matter. Lastly, they wrote to the Council of Europe Convention on Access to Official Documents.
Based on all the information gathered, the Ombudsman made a series of practical recommendations. The European Commission is currently drawing on these practical recommendations in its efforts to arrive at a shared approach on the use of modern communication tools among the EU institutions.
The second example of the use of comparative research is an independent study that the Ombudsman is currently commissioning with the help of the European Parliament’s research service. The aim of this study is to see how international financing institutes are publishing documents containing environmental information on projects they finance.
The issue arose in an Ombudsman inquiry which concerned public access to environmental information for projects financed by the European Investment Bank (EIB). The complainants, three civil society organisations, were concerned that, by publishing too little environmental information about its projects and too late in the process, the EIB prevented the public from fully expressing its views on environmental issues before the Bank takes its decision to finance projects.
The Ombudsman found that the far-reaching objectives underpinning the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters required a more ambitious approach on the part of the EIB and made a series of suggestions to the Bank. In reply, the EIB did not accept all of the Ombudsman’s suggestions and, when closing the case, the Ombudsman stated that ‘[t]he issue of transparency of environmental information has […] been included in the Ombudsman’s current strategic work, and is intended to include the commissioning of an independent study on best practices for publication of environmental information by international financing institutes, as well as exchanges with international expert bodies in the field’.
The intention of the study is thus to see how international financing organisations, which are similar to the EIB, are publishing environmental information so that the Ombudsman can draw on this comparative analysis when examining complaints in the future.
Conclusions
Comparative analysis of administrative practices plays a limited role in the Ombudsman’s daily work on public access to documents. Where the Ombudsman inquiry team needs, however, to look at national and international practices, the purpose is mostly to explore good administrative practices as an inspiration for the EU level. Another purpose might be to lend more weight to the Ombudsman’s non-binding proposals, suggestions or recommendations.
One factor that clearly prevents the Ombudsman’s Office from conducting comparative analyses in a more systematic way is its limited resources. While the Ombudsman continues to be supported by a small office (about 75 staff), the EU administration has been expanding in size (it now encompasses over 60 institutions and agencies) and competences, as compared with just a handful when the Ombudsman was established in 1995.
Posted by Tanja Ehnert, Inquiries Coordinator at the Directorate of Inquiries at the European Ombudsman
