United Kingdom Journals

		[2000] 1 Web JCLI

Quasi-Judicial Review: The European Ombudsman As An Alternative To The European Courts

Roy W. Davis*

Ph.D. Candidate, Durham European Law Institute
University of Durham

<R.W.Davis@durham.ac.uk>

*I should like to thank Ms H A Cullen and Ms C McGlynn for their comments on an earlier draft of this article.

Copyright © 2000 Roy W. Davis.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The European Ombudsman is not a judge, but it is possible to compare the decisions of the current Ombudsman, Mr Jacob Söderman, to the Judgments of the Court of First Instance (CFI). This should not be surprising, in view of the Ombudsman's intended role within the EU. From the citizens' point of view, it should be welcomed. It will be argued that the Ombudsman offers a credible alternative to the CFI, particularly when EU Institutions refuse to grant access to documents in their possession; that this helps to ensure the social legitimacy of the EU; and that the Ombudsman's experience has a positive implication for single-Judge Chambers of the CFI.

Contents

Introduction
The European Ombudsman: Mediator or Judge?
Quasi-Judicial Review
Public Access to Community-Held Documents
The European Ombudsman and public access to documents
Conclusion

Bibliography

Introduction

There can be no doubt, as will shortly be seen, that the European Ombudsman was established in order to bring the European Union closer to its citizens, and thereby to enhance the social legitimacy of the Union. Broadly speaking, "social legitimacy" in this context concerns the extent to which those subject to law regard the law-makers as having a right to tell them what to do. It is not quite the same concept as "popularity" or "public support", although it is evidently related. The more popular that the Union becomes, the more social legitimacy it will inevitably possess. However, it is the extent to which people are prepared to accept the supremacy of Community law, and measures (such as the single currency) leading towards further integration, without complaint that are the real indicators of the Union's social legitimacy (on social legitimacy, see further Weiler 1991, esp at 2469, and Lipset 1994, esp at 91-2). In general terms, the strategy of bringing Europe closer to its citizens involves making ordinary people feel that they are important in the integration process, and demonstrating that this process offers them tangible benefits.

In the Ombudsman, Europeans now have a champion, who can challenge the way in which the Institutions deal with them. An examination of the Ombudsman's homepage<http://www.ombudsman.europa.eu/media/en/default.htm>, and its subsidiary pages of Decisions and Annual Reports, soon reveals that well-founded complaints to the Ombudsman almost always produce positive action, such as the setting up of an informal meeting (see, e.g., <http://www.ombudsman.europa.eu/decision/en/961109.htm>) or the reimbursement of expenses (see, e.g., <http://www.ombudsman.europa.eu/decision/en/981288.htm>) Any type of remedial action the Ombudsman proposes may of course be deemed effective if the complainant is satisfied by it and the Institution complained of is willing to take it. On this basis, complaining to the Ombudsman certainly seems to be an effective way to resolve grievances. Obviously, not all complaints prove to be well-founded. Also, although a finding of no maladministration might not be the complainant's desired outcome, s/he should at least be reassured to know that the Ombudsman is truly impartial and independent. Mr Söderman does not hesitate to criticise the Institutions, if criticism is appropriate.

In certain circumstances, aggrieved citizens may not only complain to the Ombudsman. They can also seek judicial review before the Court of First Instance (CFI). The implications of this choice, for citizens, the Ombudsman and the development of Community administrative law, will be examined below. It will also be suggested that the Ombudsman's role may be of interest in connection with the recently-implemented proposal to delegate certain cases to single Judges of the CFI.⁽¹⁾

Top | Contents | Bibliography

The European Ombudsman: Mediator or Judge?

Before examining the Ombudsman's methods in more detail, and attempting to compare these to those of the CFI, it is desirable to review the underlying purpose of the Ombudsman, in order to decide whether or not s/he was intended to do more than simply endeavour to secure amicable solutions to citizens' complaints. The Ombudsman is clearly not a judge, so it is necessary to determine the extent to which s/he may legitimately be compared to one.

In 1978, Sir Derek Walker-Smith QC, MP, observed that binding Community law was increasingly regulating the lives of ordinary Europeans (Walker-Smith 1978, p 3). Although satisfied with the protection accorded to civil and political rights by the European Convention on Human Rights, he suggested that socio-economic rights could be better protected by appointing a Community Ombudsman (ibid pp 1-2). This would allow for the investigation of injustice through maladministration, and reassure citizens that the EEC was less remote and impersonal than they might otherwise think (ibid p 4). He did not suggest that the Ombudsman might assist in the development of Community law, or constitute an alternative to judicial review. In 1979, however, the European Parliament adopted a Resolution aimed at instituting a Community Parliamentary Commissioner for Administration (OJ 1979 C 140/53). The preamble suggests that "an independent extra-judicial institution such as the Ombudsman can provide a flexible and effective system for controlling the executive, ensuring that the law is justly applied and protecting the citizen." Therefore, at least one role of a judicial and supervisory nature - "ensuring that the law is justly applied" - was considered suitable for the Ombudsman.

Following the actual establishment of the European Ombudsman by the TEU, Mrs R Bindi of the European Parliament's Committee on Institutional Affairs reported that the Ombudsman "is intended to give people a means to defend themselves against administrative abuses, without having to resort to costly legal action, or where legal action is not possible" (Report A3-0298/92, p 12). The European Parliament's response (Resolution A3-0298/92, OJ 1993 C 21/141) further emphasises that the Ombudsman "is intended to reinforce the safeguarding of the rights of citizens of the Union", and to bolster citizens' confidence in the European Institutions, by providing an effective complaints procedure. He is required to seek an amicable solution to complaints, so far as it is possible to do so, per Article 3(5) European Parliament Decision 94/262 (OJ 1994 L 113/15). In this respect, he is not realistically comparable to a judge, who must eventually impose a final judgment that will obviously not be welcomed by one of the litigants. Nevertheless, as will be seen in the following section, if an amicable solution is not forthcoming, the Ombudsman may well start to appear less like a mediator and more like a judge.

There is, or perhaps should be, nothing new or surprising about this interpretation of the European Ombudsman's role. There are long-established national Ombudsmen whose methods (and, in some cases, whose actual powers) closely resemble those of a judge. The Swedish Ombudsman has power to impose decisions and make directions, instead of mere recommendations (al-Wahab 1979, pp 52, 60). Even in the United Kingdom, the (relatively weaker) Parliamentary Commissioner for Administration considers complaints in what can only be described as a judicial manner. S/he examines evidence from both parties to the complaint, assesses the extent to which the government department complained of complied with the law and established principles of good administration, and determines an appropriate remedy if maladministration is found (Gregory and Hutchesson 1975, pp 163-6). Heede says of the European Ombudsman that he "could be understood as applying and developing a legal principle...he is conducting a form of legal - although non-judicial - review" (Heede 1997, at 595). Moreover, Article 6(2), Decision 94/262 stipulates that the European Ombudsman shall "meet the conditions required for the exercise of the highest judicial office in [his/her] country or have the...competence and experience to undertake the duties of Ombudsman". It surely seems perfectly natural for a judicially-qualified Ombudsman such as Mr Söderman to observe the case law of the European Courts, where this concerns matters of good administration. It also seems reasonable to suggest that a putative future Ombudsman without a judicial background should do so. There may possibly be a legitimate expectation to that effect, on the part of any future complainant, following Mr Söderman's precedent and his statement that "the jurisprudence of the Courts in Luxembourg and the literature on European administrative law as well as on the national level will safely guide the Ombudsman's ship on the heavy seas of good and bad administration" (Söderman 1997, at 354).

It appears that the European Ombudsman's role is not merely twofold, however (Heede 1997, at 588), but fourfold. As Heede says, the Ombudsman "provides a cheap, flexible and accessible form of redress for individual grievances", and thereby "reinforces the rule of law in the Community and complements the role of the courts". Also, being able to make inquiries at his/her own initiative, s/he provides "an independent critical appraisal of the quality of administration by Community institutions...and a stimulus towards improvement", which helps to promote the public accountability of the Institutions (ibid). The Ombudsman's accountability-enhancing function is highlighted by the fact that all investigations "should be dealt with in a public way", as noted on the complaint form available via the Ombudsman's homepage (cited above). The Ombudsman could not be an effective source of social legitimacy for the EU if his/her investigations were not published. A third aspect of the Ombudsman's role has emerged, because the provision of redress for individual grievances clearly falls into two overarching categories. The Ombudsman may provide redress either by mediation, or by quasi-judicial review.

Mediation implies, of course, that the Ombudsman, faced with a valid complaint, suggests a solution to the complainant and the Institution complained of, and that both parties reach an amicable agreement based on this suggestion. Quasi-judicial review, as will be seen in the following section, does not always result in an amicable agreement, although it is a highly effective method of addressing a complaint. Mr Söderman certainly uses it whenever it is necessary, for example, to show that a friendly settlement cannot be reached. In exercising these three distinct functions (independent appraisal of the Community administration, and the provision of two types of redress), the Ombudsman demonstrates a fourth function, expressly contemplated by Walker-Smith and the European Parliament. S/he may enhance public confidence in the EU Institutions.

If the Ombudsman could not use quasi-judicial review, it might not be possible for him/her to perform this fourth function, however. Not all complaints are well-founded, and not all well-founded complaints are amenable to mediation. Many complainants might be left unsatisfied if the Ombudsman could not at least reassure them that their grievances had been adequately considered. The use of quasi-judicial review certainly seems to demonstrate this satisfactorily. Moreover, given the precedents set by national Ombudsmen in the exercise of their duties, it should not be startling to conclude that the European Ombudsman was, indeed, intended to do more than simply seek friendly solutions to citizens' complaints. Any doubt concerning this might perhaps be dispelled by examining the example of complaints against refusals by the Institutions to grant access to documents in their possession.

If citizens are refused access to Council and Commission documents, they will be advised either to seek judicial review of the refusal before the Court of First Instance (CFI), or to complain to the European Ombudsman, as specified in Article 7(3) Council Decision 93/731 (OJ 1993 L 340/43) and Article 1, Commission Decision 94/90 (OJ 1994 L 46/58). Both remedies are evidently intended to be mutually exclusive. The Ombudsman cannot investigate complaints if sub judice, or previously settled by the CFI, and cannot investigate alleged maladministration of the Community Courts acting in their judicial role (Article 195 EC, formerly Article 138e). Conversely, the possibility of obtaining judicial review of the Ombudsman's decisions seems remote (as confirmed, albeit informally, by Judge Christopher Bellamy of the CFI⁽²⁾). Clearly, however, both remedies are presented to citizens as equally suitable alternatives in these circumstances. The question of the extent to which the Ombudsman may be legitimately be expected to behave in a judicial manner when dealing with such complaints still remains, however. An examination of quasi-judicial review is therefore required.

Top | Contents | Bibliography

Quasi-Judicial Review

Having examined Mr Söderman's methodology, Heede observed that the Ombudsman's decision-making literally depends on his/her judgment in each particular case (Heede 1997, at 592). This obviously makes it difficult to predict the action that the Ombudsman will take in any particular case, but the following generalisations can be made. Initially, in accordance with Decision 94/262, complaints are examined in order to ensure that they fall within the Ombudsman's mandate, are admissible according to Article 2, Decision 94/262 and suggest grounds for an enquiry. Otherwise they will be rejected (Heede, 1997, at 589-92). The Ombudsman then decides whether there are grounds for inquiry into admissible complaints (Article 4.1, Implementing Provisions, available <http://www.ombudsman.europa.eu/resources/provisions.faces>). The distinction between mediation and quasi-judicial review only becomes apparent when that decision is made.

Of Heede's five categories of decision (ibid at 596-7), that labelled "No Further Inquiries Justified" involves neither mediation nor quasi-judicial review. The Institution concerned will have observed and already corrected its own potential maladministration. "No Maladministration Found" often follows a quasi-judicial review process. "Friendly Settlement" obviously involves mediation, but Heede suggests that this "mediation" may be limited: simply lodging a complaint often prompts the Institution concerned to suggest a friendly solution. "Critical Remark", and "Maladministration and Recommendation" always follow a quasi-judicial review process. Heede describes the latter as the Ombudsman's "most severe ruling" (ibid, at 598). Maladministration meriting a recommendation is reported to the European Parliament, per Article 3(7), Decision 94/262. The Parliament may then apply political pressure to the Institution concerned in a bid to seek its compliance. As Heede also observes, even if a friendly settlement is reached, a critical remark may still be made, as in Complaint 1056/25.11.96/STATEWATCH/UK/IJH, discussed below (Heede 1997, at 596).

On this analysis, it appears that much of the Ombudsman's work involves at least some degree of quasi-judicial review. Heede offers some support for this, observing that no cases were concluded with a friendly settlement in 1996, and, as stated, that the Ombudsman's mediation in other cases was minimal. The Ombudsman's Annual Report for 1997 (OJ 1998 C 380) also shows that, of 98 inquiries reported in detail, 14 were settled by the Institution complained of, and 3 by a friendly solution (17.35% of cases). On the other hand, no maladministration was found in 51 cases, and critical remarks were made in 20 cases (72.45% of cases). 4 cases were dropped by the complainant, and 6 were closed `for other reasons' (eg the matter becoming sub judice).

Whenever a complaint justifies further inquiries but a friendly settlement is not suggested, the following procedure applies. The Ombudsman, having ruled the complaint admissible, invites the Institution concerned to comment (within three months), advising the complainant that an inquiry is to take place (Article 4.3, Implementing Provisions). He normally invites the complainant to make observations regarding the Institution's comments, ensuring that both sides have a fair hearing. The complainant usually has one month to do so (Article 4.4, Implementing Provisions). Part of the complaint may be withdrawn at this stage, as in Complaint 444/20/2/96/TK/D/VK concerning the Commission's invitations to tender (OJ 1998 C 380/43). Alternatively, new issues may arise prompting further inquiries, as in Complaint 187/17.10.95/FS/B/IJH concerning the Commission's rejection of a certificate ("EUR 1") showing that goods originated in the Ivory Coast (OJ 1998 C 380/28). Most complainants simply maintain their original complaints. The Ombudsman then decides whether to continue the inquiry (Article 4.5, Implementing Provisions) or close the file with a reasoned decision. A reasoned decision is usually presented to the complainant if the Ombudsman's investigations continue past this point (and even if a friendly solution can be found, per Article 6.2, Implementing Provisions). The decision indicates whether there has actually been maladministration in the Ombudsman's opinion, and is followed up with a critical remark or recommendation if appropriate (Article 7, Implementing Provisions).

It is the provision of a reasoned decision as the sole outcome to the grievance procedure, where there is no friendly solution, that amounts to quasi-judicial review. The Ombudsman in such instances is not acting as a mediator but as a judge, exercising a supervisory role by demonstrating to both the complainant and the Institution concerned that the latter either acted, or did not act, in accordance with the law and "principles of good administration". If the Ombudsman considers that the Institution can eliminate a particular instance of maladministration, or that the act complained of has "general implications", he closes the case with a report and draft recommendations (Article 8, Implementing Provisions). A copy goes to the complainant as well as the Institution concerned. As with a reasoned decision, the Ombudsman's report can be compared to a judge's verdict. The Institution has three months to respond. If the response does not satisfy the Ombudsman a report goes to the European Parliament, again with a copy to the complainant (Article 8.5, Implementing Provisions).

Mr Söderman has recently offered a definition of maladministration. "Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding on it" (1998 Annual Report, p 18). Although the principles of good administration have not been listed exhaustively, they include such matters as acting promptly and courteously (e.g. Complaint 130/97/HMA, 1997 Annual Report, p 10) as well as basing decisions upon accurate evidence and giving all interested parties a fair hearing (e.g. Complaint 1086/96/VK et al, discussed below). Heede notes that the Ombudsman actually makes very little reference to the case law of the European courts (Heede 1997, at 593). Nevertheless, the Ombudsman's procedure often seems to resemble that of an informal, single-judge court or tribunal. References to case law only enhance this similarity.

The judicial nature of the Ombudsman's review is most apparent in complex complaints, e.g. involving Community competition policy. Complaint 1086/96/VK is a good example (see <http://www.ombudsman.europa.eu/decision/en/961086.htm>). In January 1991, Germany legally obliged electricity suppliers to purchase wind-generated electricity at a guaranteed minimum price, based on electricity sales in the penultimate calendar year. This constituted State aid for the producers of wind-generated electricity, and was therefore notified to the Commission in 1990, as per Article 88 EC (formerly 93). The aid was approved. From July 1995, German electricity suppliers complained to the Commission that the aid was no longer justified (improved technology had made wind-generated energy cheaper to produce) and that it was likely to cripple them financially, especially if the German Länder were to increase wind-generated energy production as planned. Responding to this concern, Commissioner Van Miert wrote to German Minister Rexrodt asking him to reduce the minimum price. The producers of wind-generated electricity then complained to the Ombudsman, alleging that: a) the Commissioner had no power to write such a letter, since the Commission Decision approving the state aid could only be altered by another Decision, and b) the Commissioner had misread their legal and economic situation, having used data provided by the electricity suppliers, which the producers considered to be inaccurate and biased in favour of reducing the minimum price.

The Ombudsman found the Commission `not guilty' of maladministration. Once the Commission had approved the original German law it became an existing scheme of State aid. This could be modified in two ways - by a non-binding Commission recommendation to the Member State concerned (Article 88(1) EC), or by a fresh, binding Commission Decision (Article 88(2) EC). Therefore, the Commissioner was entitled to address a recommendation to the German Minister. Secondly, as a matter of good administration, the Commission was required to base technological and economic assessments upon accurate data, and to ensure that this data was open to critical appraisal from all interested parties, who should be given a fair hearing. As the Commission had actually met with the German government, electricity producers and electricity suppliers during the first half of 1996, before Mr Van Miert wrote his letter, it seemed to have taken all reasonable steps to ensure the accuracy of the data and to afford the producers a hearing.

This decision is comparable to the judgment of an English court asked to consider the vires and procedural propriety of an administrative decision. Just as the Ombudsman examined the Commission's powers under the EC Treaty, so will the court examine an administrative authority's powers under legislation, to ensure that those powers had not been exceeded or abused. For example, R v Secretary of State for Home Affairs The Times, 20.v.93 (CA) concerned the Home Secretary's power to regulate prison security under the Prison Act 1952. A rule of 1964 permitted the interception of correspondence to and from prisoners, including correspondence from solicitors. This rule was found to breach the duty to maintain solicitor-client confidentiality, which did not threaten prison security, and was thus held to be outside the Home Secretary's statutory powers. As the Ombudsman determined whether or not the electricity producers had a fair hearing, so will the court examine the manner in which a decision was taken, to ensure that the requirements of natural justice had been met. For example, R v Barnsley MBC, ex parte Hook [1976] 3 All ER 452 (CA) concerned a disciplinary hearing before a Council sub-committee. Mr Hook was not present when the evidence against him was heard, but the `prosecuting' party was present during the sub-committee's deliberations. This constituted a breach of natural justice, so the decision to ban Mr Hook from market trading was quashed.

It is worth noting that the Ombudsman's power to undertake own-initiative inquiries gives him/her a distinct advantage over the courts, in terms of helping to ensure public accountability of the Institutions, because s/he does not have to wait for a complaint to be made in order to investigate possible maladministration. For own-initiative inquiries, the same investigative procedure applies as when a complaint is made (Article 9, Implementing Provisions). Heede further notes that the Ombudsman's approach is not "confined to the established case law of the ECJ about `principles of good administrative behaviour'" (Heede 1997, at 595). The Ombudsman, like the Community courts, may `discover' further principles of good administration and thus, albeit in a "soft law", recommendation-based manner, further the development of European administrative law. For example, thanks to the Ombudsman, it is now part of the principle of good administration that Institutions keep complainants informed about the processing of their complaints (OJ 1998 C 380/129). Although Usher observes that "the principle of good administration is not always legally enforceable", a breach of this principle which "affects a legal or legally protected situation or gives rise to quantifiable harm" could form the basis of a legal action (Usher 1998, at 100 and 120). The Ombudsman has also confirmed that failure of a Community Institution or other body (e.g. the European Trading Foundation) to provide rules granting public access to information constitutes potential maladministration (OJ 1998 C 44/09, at 44/10).

References to ECJ and CFI case law featured prominently in the Ombudsman's decisions concerning refusals to grant access to Community-held documents. In order to highlight the similarity of the Ombudsman's role in such cases to that of the CFI, it is desirable to examine the relevant case law.

Top | Contents | Bibliography

Public Access to Community-Held Documents

By Declaration No. 17, annexed to the TEU, the Commission was recommended to investigate "measures designed to improve public access to the information available to the institutions", because "transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration".

The Commission and Council developed a joint Code of Conduct (OJ 1993 L 340/41) on access to documents, specifying the circumstances under which documents will or may be refused.⁽³⁾ This was then formally adopted (Council Decision 93/731, OJ 1993 L 340/43; Commission Decision 94/90, OJ 1994 L 46/58). The Netherlands sought to annul the Council Decision and Code of Conduct, arguing that the Council lacked authority to make rules on such a fundamentally important matter as the right of public access to documents (Case C-58/64, Netherlands v Council [1996] ECR I-2169). The ECJ, however, rejected the application for annulment, ruling that in the absence of Community-wide legislation on the matter, each individual Institution must provide for public access to information in accordance with the existing general principle of good administration. As noted, the Decisions provide that disappointed applicants are to be advised of the means of redress available to them. With regard to the possibility of obtaining judicial review, most applicants for public access are non-privileged applicants within the meaning of Article 230 EC (formerly 173). Applications for judicial review are therefore heard before the CFI. Locus standi is unproblematic under Article 230(4), since decisions refusing access are invariably addressed to the applicants.

In Case T-194/94, John Carvel and Guardian Newspapers Ltd v Council [1995] 3 CMLR 359, the failure to give reasons for refusing access to documents, as required by Article 253 (ex Article 190), was the most significant consideration. Carvel sought access to, inter alia, the Council minutes relating to justice, agriculture and social affairs. Access was refused on the ground that these concerned confidential Council deliberations. The CFI annulled the refusal, finding that the Council had not actually balanced Carvel's interest with its own interest in maintaining the confidentiality of its deliberations, as required by Article 4(2), Decision 93/731 (paragraphs 78-80; see also Campbell 1997, at 180). Obviously, by offering a fuller explanation, the Council might have been able to demonstrate that it had in fact done so. This view is supported by paragraphs 125-127 of the judgment in Case T-174/95, Svenska Journalistförbundet v Council [1998] 3 CMLR 645.

The judgments in Case T-105/95, WWF (UK) Ltd v Commission [1997] ECR II-313 and Case T-124/96, Interporc IM-Und Export GmbH v Commission [1998] 2 CMLR 82 were also based on insufficient reasoning. The meaning of "sufficient reasons" is explained in Joined Cases T-213-95 and T-18/96, SCK & FNK v Commission, Judgment of 22.x.97, at paragraph 226. A statement of reasons must "give the person concerned sufficient information to enable it to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested, and to enable the Community judicature to carry outs its review of the legality of the decision." The CFI is obviously concerned to ensure that the right of access to documents is at least upheld in principle, and that decisions are taken in full accordance with the Council and Commission Decisions conferring that right. This is supported by paragraphs 1, 3, 4 and 110 of the Svenska judgment. Nevertheless, it must be noted that the CFI is unable to grant or refuse access to Community documents. The Interporc case clearly indicates, at paragraph 61, that it has no jurisdiction to issue directions to the Institutions in actions for annulment of decisions. Furthermore, Eliasson observes that a new form of legal action would be required to enable the CFI to substitute its own decision for that of an Institution (Eliasson 1997, at 36). This was suggested prior to the 1996 Intergovernmental Conference, but the proposal submitted merely allowed the Council to authorise such a procedure by adopting a common accord, as does Article 255(2) (ibid).

Svenska involved an attempt to compare Swedish law to Decision 93/731, by seeking the same 20 documents (relating to "Europol") from both the Swedish authorities and the Council. The Swedish authorities provided 18 documents whereas the Council provided only 2. The CFI annulled its refusal to provide more, for insufficient reasoning. The Council had not specified whether it was relying upon the mandatory exception for the protection of the public interest (Article 4(1), Decision 93/731), or the discretionary exception in Article 4(2) for the protection of the confidentiality of Council proceedings (paragraphs 119 and 124). Moreover, if relying on the former, it had not adequately explained why. It could have done so without revealing the contents of the documents concerned, and therefore should have done so (paragraph 123). The duty to give reasons in public access cases is restated at paragraph 117: "The statement of reasons for a decision refusing access to a document must...contain - at least for each category of documents concerned - the particular reasons for which the Council considers that disclosure of the requested documents comes within the scope of one of the exceptions provided for in [Council] Decision 93/731."

Top | Contents | Bibliography

The European Ombudsman and public access to documents

The three complaints submitted by STATEWATCH UK (a "watchdog" organisation concerned with civil liberties) concern the Council's refusal to grant access to documents relating to the `Third Pillar' (Justice and Home Affairs).⁽⁴ )

The Ombudsman referred extensively to Svenska in all three Decisions, but included a reminder that the ECJ is the highest authority on the meaning and interpretation of EC law. In Complaint 1057, the Ombudsman held that (following Svenska) Article 4(1), Decision 93/731 required more than a bald assertion from the Council that the information requested could undermine the protection of public security. The CFI had held that it is possible to indicate reasons for this without disclosing the contents of the documents concerned. He also held that Article 4(2), Decision 93/731, permitting access to be withheld in order to protect the Council's confidentiality, did not justify a blanket refusal to grant access to any document defining national positions. Again, from Svenska, there must be a genuine balancing act between the Council's interests and those of the person requesting documents. Therefore, the Ombudsman recommended that the Council should provide the documents requested unless it could bring either one of these exceptions to apply. In Complaint 1056, he held that a blanket refusal of access to documents co-authored by the Council was unjustifiable. It would widen the scope of Article 2(2), Decision 93/731, creating a de facto exception to the principle (acknowledged by the Council and Commission Decisions) of granting the widest possible access to information. This would contravene the CFI case law (cited above) requiring any exceptions to be interpreted as restrictively as possible. Again, therefore, he recommended that access be granted unless another exception could be applied. In Complaint 1053, he found that Article 3(2), Decision 93/731, should likewise be interpreted more narrowly than the Council wished. The Council had classified requests for several (different) documents concerning the same general topic as "repeat access". Although a friendly settlement had been reached, the prima facie maladministration was nevertheless criticised. Apparently, a recommendation would have been made, had the complaint not been settled.

In handling these complaints, the Ombudsman clearly followed the approach of the CFI in order to demonstrate that his finding of maladministration was justified according to EC law, to which he specifically referred. This approach seems to be entirely justifiable if the Ombudsman is indeed intended to offer a credible alternative to the CFI in public access cases. His/her credibility as an alternative to judicial review may also be illustrated by noting that, if the CFI annuls a refusal to grant access to documents, this may achieve no more, pragmatically speaking, than a recommendation from the Ombudsman that access be granted. In both cases the Institution concerned may lawfully continue to refuse, so long as it provides "sufficient reasons" for its refusal.

Top | Contents | Bibliography

Conclusion

Obviously, the Ombudsman and the CFI are not wholly equivalent. The Ombudsman must find friendly solutions if possible, and his decisions are not binding. If appropriate, s/he can only encourage the Institution to take action by "explaining his views in a critical remark" (Annual Report for 1998, p 30). However, Mr Söderman's approach to complaints often distinctly resembles the CFI's approach to judicial review, particularly in cases concerning public access to documents. The Ombudsman, when undertaking quasi-judicial review, arguably functions as an informal court or tribunal, presided over by a single judge. It seems on occasion to be necessary for him/her to do so in order to show a complainant that the complaint has been fully addressed, especially if the complainant has failed to secure a desired outcome, such as the payment of funds s/he hoped to receive. The Ombudsman is not formally required to refer to the case law of the Community courts, and evidently does not do so on a regular or frequent basis. However, it would surely be illogical for him/her to ignore precedents that are relevant to a particular administrative matter, such as the granting of public access to documents, especially when the Ombudsman has been specifically presented as an alternative means of redress to the Community courts, and in view of the fact that it is surely desirable to present the Institutions with a wholly consistent set of good principles of administration for them to follow.

The Ombudsman's experience also has a positive implication for the CFI. It seems illogical to imply that it might undermine the CFI's social legitimacy to delegate certain `straightforward' cases to a single Judge, as was argued before a House of Lords Select Committee in response to the proposal to create single Judge Chambers,⁽⁵⁾ when it is almost invariably argued that the single Ombudsman should enhance public confidence in the Institutions and the EU in general. Given the Ombudsman's experience and success in supervising the legality and procedural propriety of even complex Community decisions, the Judges of the CFI are undoubtedly capable of handling more straightforward cases by themselves, e.g. EU staff cases. In any event, these obviously concern administrative decisions (relating, of course, to employment), and there are ample precedents. In such cases, the CFI might therefore be compared to an administrative (employment) tribunal, as opposed to an international court of law. It would not seem to require several Judges from several nations in order to make its judgments in such cases acceptable to the public.

As noted, judicial review has a limited capacity to deliver a substantive remedy, such as the granting of access to documents. The CFI and Ombudsman may only refer requests for documents back to the Institution concerned. Naturally, if an Institution could not provide "sufficient reasons" for withholding access to documents, following annulment of its original refusal by the CFI, access would no doubt be granted. However, if the Ombudsman recommended that access be granted, to refuse would require both "sufficient reasons" and determination to ignore the recommendation. A recommendation from the Ombudsman must carry some political weight. Accepting it could enhance a complainant's opinion of both the Institution and the Ombudsman. Ignoring it could strengthen the complainant's perception of the Institution as unnecessarily secretive, and would not encourage faith in the Ombudsman, and so would not help the Ombudsman enhance the social legitimacy of the EU. If the Institutions are genuinely concerned about their social legitimacy, such considerations should not be dismissed lightly. Politically speaking, therefore, quasi-judicial review by the Ombudsman might place more pressure on an Institution to grant access to documents than judicial review by the CFI.

In referring a decision back to an Institution, the Ombudsman may well indicate what he thinks the decision should have been. Taking this pragmatic view, Heede characterises Mr Söderman as an "appeals mechanism" in public access cases (Heede 1997, at 600). At least in this respect, quasi-judicial review may transcend the limits of ordinary judicial review. The Ombudsman's power to make recommendations may not only help him to contribute to the development of Community administrative law, by helping to define the general principle of "good administration", but may also encourage the award of a substantive remedy, which should certainly benefit complainants. On balance, pragmatically speaking, the Ombudsman, being much cheaper and (usually) quicker than judicial review,⁽⁶⁾ might be the best remedy for non-privileged applicants, even if they could also challenge an Institution's decision before the CFI.

Top | Contents

Bibliography

al-Wahab, I (1979) The Swedish Institution of Ombudsman: An Instrument of Human Rights (Stockholm: Liberförlag).

Brown, Neville (1995) `The First Five Years of the Court of First Instance and Appeals to the Court of Justice: Assessment and Statistics' 32 Common Market Law Review 743.

Campbell, K (1997) `Access to European Community Official Information' International and Comparative Law Quarterly 174.

Craig, P and de Búrca, G (1998) EU Law: Text, Cases, and Materials, 2^nd Edition (Oxford: Oxford University Press).

Eliasson, D (1997) `Openness and Transparency: The Experiences of a New Member State' in `Openness and Transparency: Meaningful or Meaningless?' European Information Association Conference Papers, 31.

The European Ombudsman's Annual Report for 1998 (1999) (Luxembourg: Office for Official Publications of the European Communities).

Gregory, R and Hutcheson, P (1975) The Parliamentary Ombudsman: A Study in the Control of Administrative Action (London: George Allen and Unwin Ltd).

Heede, K (1997) `Enhancing the Accountability of Community Institutions and Bodies: The Role of the European Ombudsman' 3 European Public Law 587.

House of Lords Select Committee on the European Communities, 1997-98 Session, 25^th Report: "The Court of First Instance: Single Judge", 9.vi.98 London: HMSO.

Korthals, W. F. et. al. (eds., 1992) Information Law Towards the 21^st Century (Deventer, Boston: Kluwer Law and Taxation Publishers).

Lipset, S (1994) `Social Conflict, Legitimacy and Democracy' in Connolly, W (ed.) Legitimacy and the State (Oxford: Blackwell Ltd).

Magliveras, K (1995) `Best Intentions but empty words: The European Ombudsman' 20 European Law Review 401.

Öberg, U (1998) `Public Access to Documents after the entry into force of the Amsterdam Treaty: Much Ado about Nothing?' vol. 2 no. 8 European Integration Online Papers, <http://eiop.or.at/eiop/texte/1998-008.htm> [12.I.99].

O'Neill, M (1998) `The Right of Access to Community-Held Documentation as a General Principle of EC Law' 4 European Public Law 403.

Söderman, J (1997) `A Thousand and One Complaints: The European Ombudsman en route' 3 European Public Law 351.

Usher, J (1998) General Principles of EC Law (Harlow: Addison Wesley Longman Ltd).

Walker-Smith, D (1978) The Case for a European Ombudsman (London: European Conservative Group).

Weiler, J (1991) `The Transformation of Europe' 100 Yale Law Journal 2403.

Footnotes

(1) Article 1, Council Decision 99/291 (OJ 1999 L 114/52) simply amends Article 2(4), Decision 88/591 (OJ 1988 L 319) to enable the CFI to be constituted by a single Judge. Article 2, the final provision, gives the date of the Decision's entry into force as the 15^th day following publication in the Official Journal (i.e. 16 May 1999). The preamble alone (points 3 and 4) indicates the Council's intention that only cases deemed to be of no particular importance or complexity are to be heard by a single Judge (but see further the 25^th Report of the House of Lords Select Committee on the European Communities, 1997-98 Session, "The Court of First Instance: Single Judge", 9.vi.98, HMSO, London, which suggests that EU staff cases in particular will be delegated to single Judges).

(2) In response to a question following the 1998 Durham European Law Institute Annual Lecture, University of Durham, 26.xi.98, entitled `The Court of First Instance: Perspectives for the Future'.

(3) Access will be refused if disclosure of a document could undermine the protection of the public interest in: public security, international relations, monetary stability, court proceedings, inspections and investigations, or the protection of individuals and privacy, or the protection of commercial and industrial secrecy, or the protection of the Community's financial interests, of the protection of confidentiality. Access may be refused in order to protect the Institution's interest in the confidentiality of its own proceedings.

(4) The complaints submitted by STATEWATCH UK may be found on <http://www.ombudsman.europa.eu/decision/en/961053.htm>; <http://www.ombudsman.europa.eu/decision/en/961056.htm>; and <http://www.ombudsman.europa.eu/decision/en/961057.htm>.

(5) 25^th Report of the House of Lords Select Committee, cited above (note 1), p 6, paragraph 7. It was argued, for example, that litigants might not wish their case to be heard before a Judge of a particular nationality, and might not accept the resulting Judgment.

(6) The CFI currently requires about 30 months to reach a Judgment (25^th Report of the House of Lords Select Committee, (cited above, note 3) p 12, paragraph 31). The Ombudsman is usually able to dispose of a complaint in 9-12 months, although the STATEWATCH complaints took 20 months, for reasons that are not apparent from the Decisions themselves.