Refashioning the Administrative Ethos of the European Bureaucracy: The European Ombudsman’s paradigm Dr Alexandros Tsadiras Assistant Professor in EU Law European University Cyprus

Structure : A. The role and mission of the European Ombudsman B. The infringement procedure of EC Treaty Art. 226 C. The EU recruitment procedures D. Contracts and grants E. Public access to information and documents F. The Code of Good Administrative Behaviour G. Concluding remarks

A. The role and mission of the European Ombudsman 1. Established in 1992 and became operational in Seat: Strasbourg, France 3. Mission: to investigate instances of maladministration in the activities of European Community institutions and bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.

5. Remedial powers: i) friendly solutions ii) critical remarks iii) draft recommendations iv) special reports v) annual reports 4. Initiation of investigations: reactive / proactive No coercive powers

B. The infringement procedure of EC Treaty Art The procedure: The main path through which the Commission (the main administrator of the European Union) ensures that the Member States of the European Union respect their legal obligations under European Community law. 2. The judicial orthodoxy: The European Court of Justice (i) refused to recognise procedural rights to individuals as they are not formally seen as parties to the infringement procedure and (ii) left the Commission with a wide margin of discretion as to its final decision.

4. Two categories of commitments i) The first pertains to the relationship between the complainants and the European Commission. ii) The second relates to the interaction between the Commission and the Member States. 3. The improvement: The creation of a series of commitments which the European Commission ought to honour when dealing with citizens’ grievances about infringement of EC law by Member States.

5. The first category of commitments The Commission has agreed to: i) register the complaints and inform the complainants accordingly; ii) keep the complainants informed of the action taken in response to their complaints; iii) conclude the investigation of complaints within one year save in exceptional circumstances; and v) provide the complainants with sufficient information and time to prepare and submit observations before the closure of their case.

6. The second category of commitments The European Commission has undertaken to: i) persist in its efforts to obtain replies from the Member States; ii) make sure that the recalcitrant Member State puts an end to the alleged infringement; and iii) pursue its investigative role with due diligence and impartiality.

C. The EU recruitment procedures 1. The procedures: They comprise (i) the selection procedures and competitions, either open or internal, for the filing of auxiliary, temporary or permanent staff posts, (ii) the traineeships with Community institutions and bodies and (iii) the secondment of national experts. 2. The improvements: i) Lifting the veil of secrecy of recruitment competitions. ii) The abolition of age limits.

3. Lifting the veil of secrecy of recruitment competitions The European Commission has agreed to: i) permit applicants to take the written questions with them from the examination room; ii) communicate the evaluation criteria to applicants who so request; iii) inform the applicants of the names of the members of the Selection Board; and iv) allow applicants access to the corrected copies of their own examination scripts.

4. The abolition of age limits i) Following the pressure exerted upon them by the Ombudsman, the Commission and the Parliament announced in April 2002 their decision to abolish age limits for the recruitment procedures they run. ii) EPSO’s competitions impose no age limits.

D. Contracts and grants 1. This type of case pertains to the administrative and financial handling of contracts that the Community administration concludes with a view to (i) purchasing goods and services required for its smooth functioning and (ii) managing funds under a range of programmes. 2. The improvements: i) Tackling the problem of late payment; ii) Remedies available to unsuccessful bidders in tender procedures; iii) Compensation.

3. Tackling the problem of late payment: The Commission responded positively to an inquiry initiated by the Ombudsman and presented a series of initiatives that would simplify and improve its procedures, including a commitment to submit 95% of all invoices for payment within 60 days.

4. Remedies available to unsuccessful bidders in tender procedures The Commission has put in place a system which: i) enables unsuccessful bidders to be rapidly informed of the outcome of the bid process; and ii) gives them reasonable time before the conclusion of the contract to inquire into the grounds on which the award decision is based and judicially challenge it, if they so desire.

5. Compensation: Considerable sums of compensation have been awarded to complainants for the damage or distress they have suffered as a result of the inappropriate or unlawful behaviour of the Community administration in contractual cases.

E. Public access to information and documents 1. This type of case concerns the treatment by the Community administrative authorities of requests for public access to information and documents they possess. 2. The improvements: i) The introduction of rules regulating access to documents. ii) The creation of registers of documents.

3. The introduction of rules regulating access to documents Through a series of investigations the Ombudsman paved the way for the introduction of clear and publicly available norms regulating the access of the wider public to documents held by Community authorities.

4. The creation of registers of documents Following the Ombudsman’s investigations the European Community administration has established registers of documents which are drafted or held by them. The Ombudsman made sure that such registers exist and are available to the public.

F. The Code of Good Administrative Behaviour 1. The text The European Code of Good Administrative Behaviour brings together in a clear and concise manner the basic principles which the European administration ought to respect when dealing with European citizens. Those principles derive from the case-law of the European Community courts and the various administrative laws of the Member States of the European Union.

2. The provisions The Code of Good Administrative Behaviour is composed of 27 articles and provides for a number of substantive and procedural principles of European administrative law, such as lawfulness, absence of discrimination, proportionality, absence of abuse of power, impartiality and independence, objectivity, legitimate expectations, fairness and courtesy.

G. Concluding remarks 1. The proactive capacity It is worth noticing that the aforementioned improvements to the administrative ethos of the European Union administration have been achieved through the initiation by the European Ombudsman of a series of own initiative investigations which gave uniform and centralised expression to concerns about systemic administrative malfunctioning previously voiced in ‘scattered’, individual complaints.

2. The norm-creating ability It should be born in mind that the improvements analysed above attest to the Ombudsman's ability to create progressively a number of norms that may not be relied upon before the courts, but are however deemed to restrain the administrative activity of the Community authorities.

THE END