01 September 2019

”A Supervisory Agency of Its Own Making”?

The Questionable Political Agenda of the Current European Ombudsman

In December 2019, the recently constituted European Parliament (EP) will elect the European Ombudsman (EO). The current EO, Emily O’Reilly, already announced that she will seek a new mandate when her term expires. Her performance during the last five years, however, raises serious questions about her understanding of the mandate.

The annual reports of EOs are not exactly what one would call exciting reading, but usually they are serious and solid reports on complaint-based cases and activities and stay strictly within the limits of the EO’s competencies.

This, however, changed considerably when Emily O’Reilly took office in 2013. Very soon she announced to get engaged, besides her treaty-based functions, in “proactive strategic initiatives” and a “more political approach”, without opening inquiries, but with the aim to give recommendations to the Union’s organs and institutions. In an interview in January 2015, she said: “I decided to concentrate some of my resources on strategic investigations into systemic problems in the EU administration” (emphasis added). This is repeated on her website: “Beyond inquiries into specific complaints about maladministration in the EU institutions, the EO also has the power to proactively work on broader strategic issues. The EO carries out strategic investigations on her own initiative, which aim to draw attention to matters of public interest and look into wider systemic issues affecting the EU institutions and the democratic decision-making process.”  The toxic term here is “strategic”, meaning “primarily political”. It is worth mentioning that a number of experienced lawyers in the EO’s office were replaced by non-lawyers under that new strategy.

One has to recall that all competencies of the European Union’s organs, institutions or agencies are based and depend upon conferral (Art. 4 and 5 TEU). None of them can invent or grant themselves competencies not conferred. And one searches in vain for a competence of the EO to engage in “strategic investigations into systemic problems in the EU administration”, in primary as well as in secondary EU Law.

Art. 228(1) TFEU is very clear in this respect:

“A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role “(…) “In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament (…)”.

To “conduct inquiries on his own initiative” is not an additional power, but one “in accordance with his duties”; the duties are clearly described in the beginning of Art. 228(1) TFEU. The “own initiative” does not confer a competence to conduct strategic investigations into wider systemic issues.

Likewise, there is not one word on “proactive strategic initiatives” or “investigations into wider systemic issues” in the “Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman’s duties”. Apart from that, the European Parliament would not be in the position to extend the competencies of the EO beyond those conferred in the Treaties.

Some examples of “proactive strategic initiatives”

In 2016, the EO opened a strategic initiative aimed at the former President of the EU Commission, Manuel Barroso (until 31 October 2014), at that time a private person. The reason for this investigation was his appointment in July 2016 to a senior position in an international investment bank, which, however, happened after the expiry of the “cooling off period” provided in the Code of Conduct for Commissioners. Later on, the EO pursued the inquiry as directed against the EU Commission on the basis of three complaints (Cases 194/2017/EA, 334/2017/EA, 543/2017/EA). In contrast to the (advisory) Ethics Committee, the EO found a case of maladministration and made recommendations, which were not taken up by the Commission.

In January 2017, the EO, upon a complaint from a NGO (Case 1697/2016/ANA), opened an inquiry against the membership of the President of the European Central Bank (ECB), Mario Draghi, in the “Group of Thirty” (G30), a private group that includes senior public officials, inter alia from Central Banks, academics and private sector bankers. The EO maintained that the ECB President’s continued membership of the G30 could undermine public confidence in the independence of the ECB, and thus would constitute a case of maladministration. All five respective recommendations made by the EO were disregarded by the ECB.

On 1 October 2018, the EO opened an inquiry against the European Parliament (EP) upon a complaint by a journalist (cf. Peter Teffer, “EU parliament rejects ombudsman over expenses”). The background of the case (1651/2018/THH) is that the Bureau of the EP had set up a Working Group in order to make proposals for the revision of the General Expenditure Allowance, a “flat rate allowance” which MEPs receive every month to cover costs directly related to their mandate. The Bureau took a decision on the proposals, which was published. The complainant, however, requested to also see the preparatory documents, which the EP denied, but the EO, on 29 April 2019, recommended. A letter to the EO by the outgoing President of the (now former) EP of 1 July 2019 concludes by saying: „The Parliament respectfully disagrees with the EO’s approach, both procedurally and in substance”.

On 15 July 2019, the EO launched an inquiry against the Council of the European Union upon a complaint by Foodwatch International (Case 1069/2019/MIG), criticizing that the Romanian Presidency (between January and June 2019) was sponsored by Coca Cola. The Council has replied to the complainant that “[t]he organization of the Presidency, including the seeking of sponsorship for elements of a Presidency, is, in principle, a matter for the member state authorities concerned, in this case Romania. It is not a matter falling within the power of decision of the Council”. The EO maintains that the Council, under its Rules of Procedure (Chapter I.4) may well give some guidelines on how Presidencies of the Council are organized, and asked the Council to reply by 13 September 2019. The outcome was foreseeable. The Finnish government (current Presidency) announced that Finland had no plans to discuss the issue with other countries and that it had decided to make an agreement with only one sponsor (BMW) during its presidency It later clarified that the decision was taken after an EU-wide call for tenders and that BMW does not provide fuel or drivers.

All these activities of the EO are certainly “strategic work”, in the sense that they are political. But they do not necessarily fall within the mandate of the EO. One might also wonder whether this left enough time and resources to properly deal with the actual tasks of the EO.

Jeopardizing independence – The Selmayr case

Moreover, even the unquestionable competencies of the EO have some limits, which the EO seems to have overlooked in her political activism in the notorious “Selmayr case”.

On 21 February 2018, the European Commission announced that Mr. Martin Selmayr, previously Head of President Juncker’s Cabinet, would be appointed Secretary-General of the Commission. As a consequence, the European Parliament carried out an examination of the procedure applied for this appointment and adopted a resolution on 18 April 2018, stating that the “two-step nomination of the Secretary-General could be viewed as a coup-like action which stretched and possibly overstretched the limits of the law”, but refrained from requesting Selmayr’s resignation.

On 5 May 2018, the EO wrote a letter to the President of the Commission, stating that she had received two complaints from delegations of the European Parliament (Dutch D’66 delegation – ALDE Group, case 488/2018/KR, and the French Socialists and Democrats’ delegation – S&D Group, case 514/2018/KR), alleging that the appointment of the new Secretary-General of the Commission did not comply with the EU Staff Regulations and with principles of good administration, and that she had opened a joint inquiry into these complaints.

This inquiry was based on questions and answers already dealt with by the Parliament and some additional ones. It resulted in the identification of four instances of maladministration and the recommendation that the Commission put in place a specific procedure for appointing a Secretary-General (31 August 2018), as well as in a “Decision in the joint inquiry in cases 488/2018/KR and 514/2018/KR” of 11 February 2019. In this Decision, the EO no longer speaks about “delegations of the European Parliament”, but about “a number of complaints…several of which were submitted by Members of the European Parliament (MEPs)”. None of those alleged numerous complaints is identified in the Decision, and none got an additional case number in that “joint inquiry”, besides those for the “delegations”.

Why that change in the name of the (now unnamed) complainants? Had someone reminded the EO that accepting complaints from Parliament delegations was not such a bright idea? The two delegations that filed complaints were apparently those who had unsuccessfully requested that Selmayr should resign. It seems like they tried to repair their defeat with the help of the EO.

Art. 228 TFEU is very clear in that respect: The EO is empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State. Delegations of the Parliament are none of those. And also members of a delegation cannot simply change hats and appear before the EO as citizens in a matter where they are not the personal victim of a maladministration, but want to correct a political decision. And complaints submitted through a member of the Parliament are complaints of citizens, not of the MEP themselves.

To make a possibly long legal story short: The complaints of the two delegations (and those are the only ones the decision of the EO of 11 February 2019 is based upon) were inadmissible, and admitting them was an ultra vires act.

According to Art. 228 TFEU, “the EO shall be completely independent in the performance of his duties (…) he shall neither seek nor take instructions from any Government, institution, body, office or entity” (Art. 228 sec. 3 TFEU). Nevertheless, the EO is closely linked to the Parliament; he or she is elected by the Parliament and shall submit to it annual reports on the outcome of the enquiries undertaken. An EO which sides contra legem with delegations of the Parliament, providing them with procedural possibilities they otherwise do not have, could easily be seen as biased.

In this respect it is at least unfortunate that the Parliament in its former composition chose to use its “Resolution of 13 December 2018 on the annual report on the activities of the European Ombudsman in 2017” to pick up activities from 2018 and to emphasize that Mr. Selmayr must resign as Secretary-General. Equally unfortunate is the fact that the Parliament, throughout the entire resolution, praises the EO’s political agenda and strategic initiatives, regardless of legal limits and the damage political activism might do to the EO’s reputation and authority in the eyes of the citizens. The EO is not a judge, but citizens expect the same independence and impartiality that qualifies a judge from their EO. How can a EO who disregards the legal limits of her own competencies, blame other EU institutions for “maladministration”? Some have seen it coming.

As Herwig C.H. Hofmann wrote, in case of “a systematic use own own-initiative investigations […] the EO would face a significant risk of being politically motivated and acting indiscriminately, based on his or her own political agenda” … and “of being pulled into existing inter-institutional conflicts, which would be highly detrimental to his or her independence (or just the perception of her independence) and, thus, his or her impartiality” … “Temptation might be strong to act as a supervisory agency of its own making”. (pp. 26/27, 11).

The European Parliament should very seriously consider to elect and appoint a European Ombudsman who leads the office back to its roots as defined in Art. 228 TFEU which leaves enough work to do. Otherwise, the European citizens will lose confidence in this very valuable institution.


SUGGESTED CITATION  Stein, Torsten: ”A Supervisory Agency of Its Own Making”?: The Questionable Political Agenda of the Current European Ombudsman, VerfBlog, 2019/9/01, https://verfassungsblog.de/a-supervisory-agency-of-its-own-making/, DOI: 10.17176/20190901-200955-0.

10 Comments

  1. Mittelwert Mi 4 Sep 2019 at 15:10 - Reply

    Your criticism of the EO is, for the most part, unfounded. In particular, I see no evidence for any ultra-vires act in the events described in this article.

    The additional inquiry prompted by complaints from members of the EP seems rather pointless, I will admit. However, the members are citizens of the EU, therefore the EO is empowered to receive and investigate complaints from them. (If not all members of the delegations wanted to complain, the wording „complaints from delegations“ is somewhat imprecise, obviously.)
    There is no requirement that the citizens complaining need to have suffered personally from the maladministration. (Oddly, the article does not even once consider the alleged requirement of being „the personal victim of a maladministration“ for any of the other investigations mentioned.)

    The power of conducting inquiries „either on his own initiative or on the basis of complaints“ means that the EO is not restricted to looking into specific complaints only, but can also notice (from previous examination of complaints) and investigate broader patterns of maladministration – i.e. „systemic problems in the EU administration“. (The term „strategic“, by the way, is not synonymous to „primarily political“.)

    The fact that EU institutions often reject criticisms by the EO does not surprise me: There can be different opinions, and people, including politicians and public servants, tend to defend their own views and actions.
    It is possible that the EO has at some points acted in an inappropriately political and not sufficiently impartial way. Based on an apparently biased legal assessment, however, this article does not convince me that you have provided a fair representation of the EO’s performance during the last five years.

    Anyway, the representatives in the EP will be able to choose what kind of approach to the job and focus in fulfilling its duties they prefer in the election of an EO for the next term.

  2. Szakerto Mi 4 Sep 2019 at 18:50 - Reply

    Obviously Mr. Stein has no idea how a proper ombudsman institution shall operate. Instead of attacking a competent EO, maybe he should take a look how the ombudsman institutions have been treated by Orban and Kaczinsky in their respective countries… The arguments of Mr. Stein were actually used in those cases by the illiberal heroes of Eastern Europe.

  3. Szakerto Mi 4 Sep 2019 at 18:57 - Reply

    I’m sure it is a coincidence that Selmayr is a professor at Saarbrücken Uni… My oh my

  4. Rex Berlinger Mo 9 Sep 2019 at 16:02 - Reply

    Although the Ombudsman’s findings in inquiries are usually referred to as “decisions”, they are not decisions within the meaning of Article 288 TFEU. They lack binding force.

    Nobody – and this includes the current Ombudsman who does not have a reputation for being too concerned about legal issues – would contest that. Unlike a court of law, the Ombudsman can therefore only seek to convince the EU institutions to adopt a certain behaviour (i.e. to correct instances of maladministration), but cannot compel them to do so.

    This is almost a truism. But it also suggests that adopting a confrontational style vis-à-vis the EU institutions risks failure. The institutions need to be convinced, and if the Ombudsman does not manage to convince them, nothing will ever move to change their behaviour.

    Professor Stein’s blog entry shows very clearly that those hyped-up inquiries opened by the current Ombudsman are characterised by a highly confrontational style towards the EU institutions and the desire to stretch the limits of the Ombudsman’s mandate. He makes a strong case for the ultra vires nature of some of those inquiries.

    From the perspective of a citizen not concerned about the finer details of the law this could all be fine. After all, why bother about those details if there is an Ombudsman who – seemingly selflessly – is willing to go after the really big fish? And have not all these inquiries showered a good deal of publicity on the office?

    Well, sadly the reality is much more sobering than that.

    The inquiries referred to in the blog post have not changed anything for the better. Put very simply: The Ombudsman’s recommendations were not accepted.
    Much ado about … nothing. A lot of grandstanding … certainly. And publicity … in plenty.

    In the cases referred to in the blog post it was either blatant from the outset – or so one could have easily concluded – that there could not possibly be an instance of maladministration in the activities of an EU institution. Or the perceived instance of maladministration could not possibly be remedied by an Ombudsman adapting a confrontational mode, which favours maximum visibility (for the Ombudsman institution? the office holder?) over a positive outcome. Looked at from the angle of the Ombudsman’s powers, could that be a reason why the Ombudsman’s mandate is delimited in the way it is in the Treaty?

    Seeking a positive outcome in any event would have required the Ombudsman to build trust with the institutions. In exercising her mandate, the Ombudsman would have had to seek to convince the institutions that there are instances of maladministration (after all, the Ombudsman cannot issue binding decisions). But this did not happen. Possibly the Ombudsman herself was not convinced that such instances of maladministration existed. Or if she was, she simply failed to convince.

    In both hypotheses, she would have failed to exercise her mandate in line with the Treaty. And this even if one presumes that the said inquiries were intra vires.

    Any innocuous observer of the current Ombudsman’s activities over the last years could be led to believe that the Ombudsman’s mandate is to increase the Ombudsman’s visibility by adapting whatever agenda it takes to that end (some could certainly be tempted to refer to a populist agenda with very little ultimate benefit to EU citizens). Professor Stein’s contribution is thus a timely reminder of what the Ombudsman’s mandate actually should entail on the basis of the Treaty.

  5. T. S. Rees Mo 9 Sep 2019 at 18:34 - Reply

    Taking up complaints from delegations in Parliament (which are not persons having right to complain) was not so wise. Did Mrs O’Reilly ask advice from a lawyer in her office and, if so, did she follow it? Making an inquiry into a case on which the European Parliament had already taken position was also not wise. The Danish Ombudsman, for example, would never do it. As former Danish Ombudsman Hans Gammeltoft Hansen wrote; “the Ombudsman should steer completely clear of cases where Parliament has expressed an opinion”. Why? Because Parliament’s opinion is a political statement. Logically the outcome of an inquiry must either support or criticise Parliament politically, both of which are outside the Ombudsman functions.
    On “strategic” own-initiative inquiries, the European Parliament said in February that the primary duty of the Ombudsman is to handle complaints. The Ombudsman institution did good own-initiatives in the past, such as on late payment by the Commission for which many complaints had been made. Strategic initiatives with no real link to complaints look like a political agenda.

  6. . Mo 9 Sep 2019 at 20:50 - Reply

    Mr Stein’s blog is to be welcomed for raising, at an appropriate moment in time, a very important issue. A very sad one, too.

    The European Ombudsman can play an important role in bringing citizens closer to the EU by investigating instances in which the latter’s administration has failed or may have failed to comply with the standards that can be expected from it. Moreover, it is certainly in the interest of citizens if the European Ombudsman interprets his or her mandate widely. And yes, the European Ombudsman can also become active on his on her own motion, as long as there is a genuine possibility that an instance of ‘maladministration’ (to quote the expression used in the Treaties) may have occurred.

    That having been said, the sad truth is that the present Ombudsman has moved away from the role that the Treaties assign to this institution in order to embark on an agenda of her own. According to the information provided on the Ombudsman’s website, the aim of the incumbent is to improve the relevance, impact and visibility of the institution. However, it is all too obvious that the most important of these three aims is the latter, and that the increase in visibility is paid for by a decline as regards the relevance and the impact of the institution. In fact, for all the ‘strategic inquiries’ carried out by the present Ombudsman, the tangible results for citizens are pretty pathetic.

    (To quote a recent example, it emerges from the information on the EO’s website that, in My 2019, the Ombudsman asked Parliament, the Commission and the Council for information on the leave rights of a female member of their staff who is part of a same-sex couple and whose partner gives birth to a child conceived by artificial insemination (SI/1/2019/AMF). In this letter, the Ombudsman does not refer to any specific or systemic problem that might have occurred as regards such leave rights but merely states that the issue ‘has come to my attention’ and that she is ‘considering how best to assist the EU institutions in protecting the interests of children in their staff policies’ and in adopting a consistent approach in the matter. How very kind, especially as the EU institutions have so far had to go to the trouble of consulting each other in cases where there were divergencies of interpretation as regards the staff rules! One wonders whether this is really the role the treaty foresaw for the Ombudsman, and why such a request for information should – in a fit of grandiloquence – be dubbed a ‘strategic inquiry’. In any event, it is instructive to note that, in his reply to this request for information, Parliament’s president pointed out that the Ombudsman chose to give a TV interview relating to the issue at hand before receiving Parliament’s reply.

    Even more strangely, the section of the EO’s website dedicated to strategic inquiries also contains a 17-page report on a consultation on ‘Multilingualism in the EU institutions’. Is this how the European Ombudsman should spend the funds provided by the taxpayer? )

  7. QA Di 10 Sep 2019 at 12:57 - Reply

    Judging from her schedule published on her website, the current Ombudsman seems to be blessed with a light schedule. For January 2019, for instance, her schedule shows one speaking engagement („University Lecture“). For September 2019, her schedule shows three entries. An entry for 4 September 2019 is (aptly?) referred to as „null“. In short, the current Ombudsman seems to have a lot of time on her hands „to proactively work on broader strategic issues“ … or just stroll around Dublin where we get to see her quite often? I think it is time for a change at the helm of the European Ombudsman!

  8. Spectator Di 10 Sep 2019 at 12:59 - Reply

    Anyone who understands European law will agree with Stein. The EU Treaty determines who can turn to the European Ombudsman and what procedural possibilities they have. Emily O´Reilly has clearly not adhered to these requirements, but has pursued her own political agenda. She has accepted complaints from EP delegations, although they undoubtedly do not have the right to appeal to the Ombudsman. She has also invented and implemented „strategic initiatives“, which are not limited to the investigation of „maladministration“, as a new type of procedure. All these procedures have no legal basis and are null and void. The fact that European institutions adhere to the legal limits of their competence is, however, enormously important for the acceptance of the EU by citizens – see Brexit. Emily O´Reilly has abused her office, breaking the law several times; she should resign.

  9. L. S. Mi 11 Sep 2019 at 21:55 - Reply

    Professor Stein hits all the right notes. Mrs O’Reilly repeatedly oversteps her mandate. In interviews, she often talks about Trump, populism, Brexit, all political matters, clearly outside her mandate. Even issues that are covered by her statute, like transparency in the EU institutions, are described on her website as about the Council’s legislative work, a matter very different from the administrative work the Ombudsman can scrutinise. Certainly all these issues atract plenty of attention, but at what cost? The EU Ombudsman’s annual report 2018, published on her website, talks about a compliance rate with her recommendations from the Commission of 76%, an all time low. So how does this help the citizens whose complaints the European Ombudsman should be resolving? And what was there for the European taxpayer when the European Ombudsman and her staff visited Washington last year?

  10. Polis Mi 13 Nov 2019 at 09:46 - Reply

    POLITICO (Playbook) of 13/11/2019 sums it up rather nicely:

    „POOR OMBUDSMAN: Emily O’Reilly, now late in her current term, could do with a win to help push along her reelection campaign. But the European Commission shook off her accusations of “maladministration” and refused to reveal which countries are blocking tougher guidelines on assessing bee-harming pesticides, saying that doing so risks breaching the rules of comitology. Add that to the pile of splashy pieces of O’Reilly advice that have been ignored by their addressees.“

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