The Role of the European Ombudsman in the Implementation of the Right to Good Administration
| Author | Ion Popescu-Slaniceanu - Diana Marilena Petrovszki - Cosmin Ionut Enescu |
| Pages | 193-208 |
Page 193
Professor Ion Popescu-Slaniceanu, PhD - The National School of Political and Administrative Studies, Bucharest - ionpopescu55@yahoo.com
Diana Marilena Petrovszki, PhD in progress - The National School of Political and Administrative Studies, Bucharest - diana.petrovszki@gmail.com
Cosmin Ionut Enescu, PhD in progress - The National School of Political and Administrative Studies, Bucharest - enescucosmin@yahoo.com
In 1992, the Maastricht Treaty envisaged the establishment of the institution of the European Ombudsman. Its considered mission was to improve relations between European citizens and European institutions and bodies and to highlight the European Union's commitment to promote democratic, transparent and accountable governments. The European Ombudsman exercises an administrative control mechanism similar to that which allows for the control of public authorities at national level by the Ombudsman in most states (Alexandru, Gorjan, Ivanoff, Manda, Nicu, & Săraru, 2005, p. 121).Page 194
Under Article 228 (1) of the Treaty on the Functioning of the European Union (article 195 (1) of the Treaty establishing a European Community)1, the European Parliament appoints an Ombudsman from among distinguished professionals, citizens of the European Union. The person appointed shall have full civil and political rights and offer every guarantee of independence.
Furthermore, that person must meet the conditions required for the exercise of the highest judicial office in their country or have the acknowledgment competence and experience to undertake the duties of the Ombudsman2. The Ombudsman is appointed after each election of the Parliament, for the duration of a full term, with the possibility of reappointment.
The Ombudsman exercises his/her functions independently. His/her independence is guaranteed by the incompatibility with other functions or activities and by the fact that his/her financial status is the same as that of a judge of the Court of Justice of the European Union. From this perspective, his/her independence is confirmed by the guarantees provided for by Articles 12 to 15 and 18 of the Protocol on privileges and immunities3.
The regulations and general conditions of the exercise of the Ombudsman's functions are determined by the European Parliament after receiving the Commission's opinion and the approval of the Council4.
The Parliament's decision from 19945 provides for the the regulation and general conditions of the Ombudsman's functions. These functions are fulfilled in accordance with the powers conferred to it by the treaties of the European institutions and bodies, the ombudsman having no possibility to intervene in anyPage 195proceedings pending before a court. Furthermore, the conditions under which the Ombudsman ceases to exercise his/her function and the replacement procedures for early termination are also regulated at the EU level. The Ombudsman may be dismissed by the Court of Justice of the European Union at the request of the Parliament, if he/she fails to fulfill the necessary requirements of the function or in case of serious fault6.
It is important to also refer to the obligation of the European institutions or bodies to provide any information requested by the Ombudsman and to facilitate access to the files needed for further investigation7, unless there are significant reasons for secrecy.
If the Ombudsman considers the complaint to be justified and establishes the presence of maladministration, he/she has the ability to inform the institution concerned, which can then take all necessary measures to solve the problem. Such problems are called "problems solved by the institution".
When the Ombudsman finds a case of maladministration but the problem is not resolved during the investigation, the Ombudsman shall seek a "friendly solution" to satisfy the request of the EU citizen.
If this is unsuccessful, he may submit a "recommendation project" to the institution, requesting it to take the necessary steps to remedy the case of maladministration. If the institution does not accept the recommendations, the Ombudsman may send a "special report" to the European Parliament.
If an amicable solution and a remedy for the case of maladministration cannot be found, the Ombudsman may send a "critical review" to the institution concerned. In any case, the Ombudsman must inform the person who made the complaint about the outcome of the investigation.
Many of the complaints addressed to the European Ombudsman relate to administrative delays, lack of transparency or refusal of access to information. Some relate to labor relations between European institutions and their agencies, staffing, and the procedure of hiring. Others are related to contractual relations between European institutions and private firms.Page 196
Therefore, the citizens of EU Member States have the right to submit a complaint to the European Ombudsman with respect to cases of maladministration in the institutions, bodies or agencies of the European Union.
Under Art. 43 of the European Charter of Fundamental Rights8, any EU citizen, as well as any natural or legal person residing or having its registered office in a Member State, have the right to refer to the European Ombudsman, cases of maladministration in the institutions, bodies, offices or agencies of the Union, except the Court of Justice of the European Union exercising its jurisdictional functions (Alexandru, Gorjan, Ivanoff, Manda, Nicu, & Săraru, 2005, p. 121) (Albu, 9/2007, p. 82).
In carrying out its functions, the European Ombudsman cannot investigate complaints relating to national, regional or local maladministration in the EU Member States.
Since the establishment of the institution, the European Ombudsman has tried to define maladministration, based on the jurisprudence of the Court of Justice of the European Union, on principles of European administrative law and by drawing inspiration from the national laws of Member States containing provisions relating to requirements of good administration9.Page 197
The definition of " maladministration" proposed by the Ombudsman in the annual report submitted in 1997, resulting from the investigation of cases of maladministration in actions of the EU institutions and bodies, was that "maladministration is present when a public body fails to act in accordance with a rule or a principle which is binding for him. "
The European Parliament accepted this definition and adopted a resolution calling upon the Ombudsman to apply it when a case of maladministration has occurred, in order to respect citizens' right to good administration.
Regarding maladministration, we note that the Committee of Ministers of the Council of Europe considered that maladministration results from public administration's inaction, but also from delayed action, or from action inconsistent with their obligations, aspects which need to be resolved according to appropriate procedures, judicial or not (Albu, 10/2007, p. 68).
As for proper administration, it was defined, in theory, as a fundamental principle of administration, which requires appropriate delegation of powers at each level, with a clearly defined indication of the mode of exercise of such powers at the respective level (Vinod, 2000, p. 16) (Catană, 2009, p. 58) an important role in achieving this being played by the empowerment of the civil society and its involvement in the act of government (Kiran, 2000, p. 164) (Catană, 2009, p. 58).
As noted in the literature, the right to proper administration is a relatively recent formulation in the European political and legal instruments. In the legal doctrine (Alexandru, Gorjan, Ivanoff, Manda, Nicu, & Săraru, 2005, pp. 120, 124, 168) the right to proper administration is being expressly and explicitly enshrined in the European Charter of Fundamental Rights and in the Recommendation CM / REC (2007) 7 of the Committee of Ministers of the Member States of the Council of Europe referring to a good administration, whose annex contains the Code of Good Administration10.Page 198
With respect to the legal nature of the right to good administration, it has been noted in the doctrine (Alexandru, Gorjan, Ivanoff, Manda, Nicu, & Săraru, 2005, p. 128) that it represents "a complex legal institution with the legal nature of a fundamental right and a general content including a variety of attributes regarding the organization and functioning of the administration, recognized as independent rights".
In relation to the state, this right is manifested as an amount of obligations the state has with respect to the organization of public administration, as well as with regard to its functioning in accordance with the law and in the interest of public administration beneficiaries.
In the preamble of the above-mentioned recommendation of the Committee of Ministers of the Council of Europe, good administration is defines as a component and one of the conditions of proper governing (Catană, 2009, p. 60) not limited to legal ways of expression. Being determined by the quality of the organization and management of structures and resources, good administration must meet the requirements of efficiency, efficacy (Alexandru, Gorjan, Ivanoff, Manda, Nicu, & Săraru, 2005, p. 174) and adaptability to the needs of society. Furthermore, it must ensure the maintenance, safeguarding and protecting of public property and public interests and must respect budgetary requirements and eliminate any form of corruption (Albu, 10/2007, p. 68).
The right to good administration is protected by Article 41 of the European Charter of Fundamental Rights. Thus, art. 41 paragraph 1 of the Charter, which defines the right to good administration, provides that any person is entitled to receive impartial and fair treatment from the institutions, bodies, offices and agencies of the European Union, as well a prompt answer to any requests.
According to art. 41...
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