Accountability and Co-Production Beyond Courts: The Role of the European Ombudsman

Abstract

The complexity of the institutional arrangements for EU administrative decision-making bears repeating: decision-making processes are fragmented, sometimes obscure, and highly varied; lines between institutionally separated areas of responsibility (most obviously ‘science’ and ‘politics’) are difficult to maintain; the multiple levels of governance involved in decisions are often impossible to disentangle, so that processes can no longer (if they ever could) be easily categorised as intergovernmental or supranational; and public and private actors work together in ways that make it difficult to define a body as either ‘public’ or ‘private’. Within this elaborate system, authority is almost self-consciously co-produced in the ways that different actors support their own authority by reference to other actors in the process, and use their own authority to support those other actors. The complexity and co-production of authority exacerbates the already daunting challenges of holding the exercise of power to account, as the classical routes of legal and political accountability fall short. The purpose of this paper is to explore whether the European Ombudsman is able to augment the accountability of authority in the EU. It will particularly explore the Ombudsman’s interventions in cases where ‘expertise’ is a dominant legitimating mechanism for a ‘political’ process of risk management. But it will attempt also to examine the other aspect of this equation, the ways in which the political process shapes the legitimacy of EU regulatory science, as well as the difficulty of drawing clear lines between those categories. The proactive and structural role of the Ombudsman provides a space in which there is at least potential to address the diversity of fora and processes in which expertise has a central role in EU administration, and the distinctiveness of co-production.