Speech of the European Ombudsman -The struggle for openness in the European Union, Speech given by the European Ombudsman, Jacob Söderman, at the 10th Anniversary Seminar of ECAS on 3 C's for European Governance, Brussels, Belgium, 21 March 2001

Good afternoon ladies and gentlemen.

The present European Commission has drafted ambitious plans for reforming the administrative framework of the Union. It will present a White Paper later this year. Its plans make reference to the institutions, the citizens and the Commission itself. The Commission has openly presented many papers regarding these plans to the public in order to provoke debate. This is a positive approach. The Commission President, Romano Prodi, has given speeches about the reform plans, declaring that the priority of his Commission's mandate will be the promoting of new forms of European governance.

In his speech on 15 February last year, President Prodi told the European Parliament that the European citizens "have lost faith in the European institutions." After speaking of the need for social reform and for a "humanistic perspective" in Europe, he declared that "the EU needs strong, efficient and accountable institutions." He then stated that those institutions should "operate in a transparent and accountable way and enjoy the full confidence of the citizens."

He further expressed a hope for a "no-holds-barred debate on this question with all the players involved". Let us join him in this debate.



THE ROLE OF THE EUROPEAN OMBUDSMAN

When the Maastricht Treaty created the concept of European citizenship, it was decided to establish a European Ombudsman to deal with complaints from citizens about possible instances of maladministration within the administrative activities of the Community institutions and bodies. These include the European Commission, the European Parliament and the European Central Bank for example. The judicial activities of the European Court of Justice and the Court of First Instance were of course excluded from the mandate. It is important to underline that the European Ombudsman has no mandate over the public authorities in the Member States. The remit is entirely at the European level.

On 2 February 2000, I had the opportunity to speak to the Convention that drafted the Charter of Fundamental Rights of the EU. In my speech, I stated that the most encouraging part of the Convention's work was the opportunity to consider modern developments in human rights standards and views on the relationship between the citizens and the public administration. I then proposed that the Charter should include a right to an open, accountable and service-minded administration.

As you all know, one of the greatest achievements of the meeting in Nice in December 2000 was the proclaiming of the Charter of Fundamental Rights. The Charter is the first in the world to include a right to good administration as a fundamental right in a human rights declaration. For the citizen, it is a clear step forward from the basic rules of citizenship contained in the Maastricht Treaty.

I gladly support President Prodi's ambition for European governance, if it meets the citizens' need for a change. Yet European governance is not enough.

We need GOOD EUROPEAN GOVERNANCE. We need to make the Charter of Nice a living reality for every European citizen.

THE NEED FOR TRANSPARENCY

The European Union often speaks about measures to improve transparency. Everybody seems to support such measures as a matter of principle, but real steps towards greater transparency seem to be hard to take.

The Amsterdam Treaty reinforces the idea of citizenship by repeating the constitutional principles on which the European Union is founded: liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. It also underlines that decisions "should be taken as openly as possible."

To me, transparency means that:
a) the processes by which decisions are made should be understandable,
b) the decisions themselves should be reasoned,
c) as far as possible, the information on which reasons are based should be available to the public,
d) meetings deciding on matters that will have a direct impact on the citizens should be open and public, so that citizens can follow them and listen to the arguments, and
e) proposals on matters that concern citizens should be presented for public debate in advance of such meetings.

Recently, the debate about transparency has concentrated almost exclusively on the issue of public access to documents. This is an important aspect, but it is not the only aspect. It upsets me that the debate on public access to documents has begun to sound like one of opposing religious dogmas. This does nothing to help the cause.

The key issue is that citizens should know what the institutions are doing and why. I hope that pragmatic proposals to achieve this goal will arise in the public debate.

It is fair to say that the more transparency a public body adopts, the fewer possibilities there are for fraud or corruption to occur. The easiest way to promote honest administration, which is what European citizens across the continent demand, is to ensure the greatest possible transparency in government. My experience is that an open administration is an effective, easy and cheap way to minimise the possibilities for fraud and corruption.

I fully accept that there are fields in which public administrations have to work in a confidential manner, but such fields are well known and listed in many working laws on the subject throughout Europe. All that is now required is enough political will and less of a desire to dispute.

ARGUMENTS AGAINST TRANSPARENCY

Some people believe that an open administration is not effective. They believe that open methods of working reduce efficiency. This argument has sounded much less convincing since the fall of the Santer Commission. It was lack of transparency that brought down that Commission. To all those who argue against openness, I have one question to ask. Was it really effective that the European Union was without a fully working Commission for half a year?

I am convinced that openness is a pre-requisite of efficiency. Is it really effective when institutions do not to keep registers of their documents? Surely the efficient internal working of an institution is impossible if no such register exists. The best way to ensure that a register is kept and kept regularly updated is to make it accessible to citizens. In doing so, it does not mean that every document is publicly available, as naturally the contents of confidential documents should not be released.

Another argument against openness says that open and accessible meetings simply lead to decisions being made in corridors and in unofficial meetings. In life there will always be informal discussion in homes, working places, restaurants and clubs. That is the reality. But in a democracy, meetings adopting laws that will be binding on all citizens cannot be taken behind closed doors. The citizens must have the right to listen and to observe when the arguments and reasons for a given decision are being presented.

I have been amazed to hear politicians argue that it is perhaps not wise to open up, for example, the legislative meetings of the Council of Ministers, as the debates are of such poor quality and would not interest the citizens. In my experience, I would say that it is rare that a debate in any legislative body is a masterpiece of wit and performance. Few parliaments in the world would ever be open to the public if this reasoning was followed. People have to have the right to observe the debate when they want to and to draw their own conclusions from it. Making a meeting open to public scrutiny would surely encourage the meeting participants to argue and debate in a more professional manner. This can only be good for democracy. The European democratic tradition is clearly rooted in open debates in legislative bodies.

NEW THREATS TO TRANSPARENCY

New elements have recently started to block the development of openness in the European Union. The Council of Ministers' increasing involvement in crisis management seems to have given absolute priority to military security issues. In this entire debate, it should be remembered that the European citizens are not the enemies but are potential supporters of the Union's activities. The Council however has allowed the military mind-set to be applied to the entire issue of public access to documents.

Furthermore, the Commission's present attitude in implementing the data protection directive will be a real obstacle to further transparency in the future. Its sweeping interpretation of the directive will mean greater confidentiality than ever before. I have recently had to present Special Report 713/98/IJH to the European Parliament on this issue. In a case involving an importer of Bavarian lager to the UK, the Commission refused to inform the complainant of who had attended a meeting that it had organised to discuss the UK's "Guest Beer" provision and who had submitted evidence to it on the subject. It used the data protection directive as the ground for its refusal. This is a very worrying precedent.

To my knowledge, there is no fundamental right in any Charter allowing for the right to give evidence to an administration in secret. The data protection directive, as interpreted by the Commission, could end up acting against the public interest instead of for it.

LEAKING DOES NOT ENCOURAGE GOOD ADMINISTRATION

It is sometimes said that if leaks are taken into account, then the European Commission is in fact a very open administration. A smile or a laugh usually follows this comment.

I am not an expert on leaking, but experience tells me that it is rare that you get something for nothing in this world. It is generally the professional journalist, the lobbyist, or the lawyer who is able to benefit from leaks. Leaks are the privilege of those people with good friends in high places. Many leaks at the EU level concern information, proposals and reports that are perfectly public in Member States with transparent administrations. Leaking may well promote a certain partial openness.

But it can also lead to corrupt behaviour. There is no such thing as a free lunch. For the journalist involved, leaking promotes an incentive to treat his Mr. Leak in a good way, to write something positive about Mr. Leak now and then, or at least to promote Mr. Leak's hidden agenda (be it a proposal, a project, or a campaign against a particular individual).

Leaks always have a purpose. Otherwise, they wouldn't exist. For a lobby organisation or a law firm, to guarantee a permanent flow of information from Mr. Leak means that the machinery must be well oiled with lunches, dinners and even friendly sailing tours. However innocent this may seem to some, to me it inevitably smells of corruption.

In a democratic society based on the rule of law, it would be better that the rules on transparency be such that they are sound and well balanced, promote transparency and that they are fully respected. Those documents that are confidential for a good reason should stay confidential.

Why I do say all this? There is one further reason why I do not like transparency based on leaking and that is that leaking only takes place in the higher circles, in the political and lobbying business class.

Ordinary citizens have to ask for documents according to the rules. For them, the rules are applied in a strict and formal way. That is the way in the economy class. The choice of papers is limited or non-existent.

THE NEED FOR GOOD ADMINISTRATIVE BEHAVIOUR RULES

There is one group in the European Union that is left with many obligations and few written rights and that is the European citizens. This is particularly the case when they are dealing with the European administration. Transparency requires that there are clear rules that are applied correctly. If the Nice Charter is taken seriously by the EU institutions and bodies, then that will affirm in writing some rights for the citizens.

In the Member States during the last few decades, many laws on good administrative behaviour have been enacted to the benefit of the citizens. Examples of such laws are given in the Special Report that I presented to the European Parliament on the subject. The fact that such laws have been enacted across the Union from Portugal to Sweden dispels the idea that the north has a different approach to good administration than the south.

In July 1999, I recommended to all institutions, bodies and agencies of the European Union that they should adopt rules on good administrative behaviour. Although I received a positive response on the matter, with many adopting the model Code that I had recommended, the overall outcome was still not satisfactory for the citizens. For instance, the Codes of Good Administrative Behaviour adopted last year by the European Commission and the European Parliament, although clearly to be seen as positive steps forward, fell short of the requirements in the Nice Charter. The Council has yet to establish any Code at all.

I therefore presented a Special Report to the European Parliament in April 2000, in which I proposed that the Parliament should take a legal initiative to pursue the enactment of a European law on good administration, which would give substance to the fundamental right set out in the Nice Charter. The Special Report is still before the Parliament, which is currently discussing the best way to go forward.

I believe that the European Union needs a law on good administrative behaviour. Such a law would mean that the citizens would know what their rights are in relation to the administration and the officials would know what is expected from them. As such it is also a matter of transparency.

THE NEED TO RESPECT THE RULE OF LAW

From the inadmissible complaints that I receive, I am able to see that Community law is still not well respected in the Member States. This is perhaps because it is not well known or understood. For big business it mostly works well as businesses have the resources to go to court with their grievances, but for ordinary citizens it does not deliver what it promises.

It is difficult for me to understand how citizens can have confidence in the EU if EU law is not respected and followed in the Member States. Furthermore, court proceedings that involve Community law are marathons. The results cannot be expected in less than three years and the costs involved are simply unaffordable for ordinary citizens.

Citizens do have the possibility to petition the European Parliament, but even when the Commission does act as a result of a petition, this takes time. The procedure that the Commission follows as the Guardian of the Treaty is non-transparent. It has been the target for much discontent and many complaints from citizens.

In a recent decision concerning the violation of public procurement rules in a Member State, I urged the Commission to establish a procedural Code for treating complaints from citizens about Member States' infringement of Community law.

The European Commission seems to be doubtful about the idea that it should deal with citizens' complaints regarding Community law. It has also started to remove the EuroJus service, by which citizens were able to receive legal advice regarding Community law matters from any Commission representation in the Member States.

OPENNESS PROMOTES THE RULE OF LAW

In one of the papers presented at this meeting, the meeting organisers deplore the fact that the Commission has not made their proposals for complaints procedures and infringement procedures public. I fully share this concern. The European Union should be a society based on the rule of law.

I believe that it is not possible to truly promote and be seen to promote the rule of law through secretive procedures. The citizens must have the right to observe and follow these procedures so that they can establish for themselves that the institution is acting fairly and promptly and that political fixing or bias is not taking place.

The present Article 226 procedure is a product of the past and must be renewed if the citizens' confidence in the rule of law is to be restored. Openness in this procedure would surely make the Member State authorities act more quickly in responding clearly when they maintain that what they are doing is right and putting things right when they have been proved to be wrong. The present system, with all its time-consuming and confidential procedures, is ineffective and furthermore leaves the European Commission to take the blame for something that the Member States are responsible for.

If this procedure cannot be promptly reformed, it might be necessary in the future to establish some sort of an independent Chancellor of Justice to take over the obligations as Guardian of the Treaty from the European Commission, which after all is a political institution. Such a Chancellor could also take over the supervision of the Union's Anti-Fraud Office (OLAF), thus securing its independence from undue interference. The European Parliament has recently urged the setting up of a European Prosecutor's Office. These proposals could be reviewed together.

CLOSING REMARKS

I believe that the right direction for the reforming of the Union administration (and the public administration in general), is to reach out to the European citizens, to work for them and to serve them in an open, dedicated and honest way. If the steps that I have tried to outline to you are taken, I believe that the EU and its institutions have a good possibility to enhance their relations with the European citizens and to promote transparency in their relations with the citizens.

True commitment to the citizens is the only way to get their confidence and support, which will be necessary in order to face the many challenges of today and of the future.

Thank you for your attention.