European Ombudsman Research Articles

Exploring the European Council's Legal Accountability: Court of Justice and European Ombudsman

The purpose of this article is to explore the avenues for legal accountability vis-à-vis the European Council after the Treaty of Lisbon. This will be achieved through an assessment of the jurisdictional realms of, on the one hand, the Court of Justice of the European Union (CJEU), and on the other hand, the European Ombudsman, always in relation to the European Council. Legal accountability may be understood in this respect as the supervision of the observance of the European Union (EU) rule of law. The European Ombudsman is an EU body established by the Treaty of Maastricht; by virtue of Art. 228 of the Treaty on the Functioning of the European Union (TFEU), he or she has the power to investigate complaints 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.”

Editorial: Tamiflu and the open data campaign

Following recent revelations about drug companies withholding clinical trial evidence from drug regulators which provide licences for the sale of drugs and, despite there being heavy regulations in this area, the BMJ has launched a consistent and sustained campaign for more open data with a focus on the following drugs: Tamiflu and Relenza, both to treat influenza, Incretin mimetics and Rosiglitazone (Avandia), both to treat type 2 diabetes, and Rofecoxib (Vioxx) for osteoarthritis. The case for regulators having access to unbiased evidence seems self-evident. Without it, they cannot possibly discharge their substantive function to protect public health. With some success, a team of scientists, which includes some of the original investigators of Tamiflu sponsored by Roche, will undertake a metaanalysis of both published and unpublished data. In addition, the Cochrane Neuraminidase Review Group have gained access to unpublished trials to update their own analysis from 2009 (Doshi, 2009; Jefferson et al., 2009). However, it remains the case that the majority of Roche’s 74 trials remain unpublished over a decade after completion (Cohen, 2009; Smith, 2009), WHO recommends Tamiflu, but has not vetted the Tamiflu data, EMA approved Tamiflu, but did not review the full Tamiflu dataset, and the CDC and ECDC encourage the use and stockpiling of Tamiflu, but did not vet the Tamiflu data (BMJ, 2013). Peter Gotzsche, Director of the Nordic Cochrane Centre, however, wants more open data and, in 2010, he sought a ruling from the European Ombudsman on the right of the public to scrutinize those data (BMJ, 2013). The devil seems now definitely in the detail. AbbVie and InterMune have recently obtained an interim ruling from the General Court of the European Union to prevent the European

Religion and EU Institutions

Comment to the decision of the European Ombudsman in his inquiry into complaint 2097/2011/RA against the European Commission dealing with the implementation of art. 17 of the Lisbon Treaty.

Religion and EU Institutions

The implementation of Article 17(3) of the Treaty on the Functioning of the European Union (TFEU) has always been one of the central topics of discussion for legal scholars analysing the relationships between religious groups and European institutions. According to Article 17, the European Union shall maintain an open, transparent and regular dialogue with churches, religious associations or communities, philosophical organisations and non-confessional organisations. In the case in hand, the complainant, the European Humanist Federation (EHF) decided to lodge a complaint before the European Ombudsman when the European Commission rejected the proposal for a dialogue seminar.

Environmental Protection through Extra-judicial Means: The European Ombudsman's Contribution

Environmental Protection through Extra-judicial Means: The European Ombudsman's Contribution

Frontex ed il rispetto dei diritti umani nelle operazioni congiunte alle frontiere esterne dell'Unione europea

Frontex, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, was set up in 2004 to reinforce cooperation between national border authorities. The present research intends to analyze the role of the Agency after the adoption of the new Regulation 1168/2011, which considerably extends the Frontex mandate (inter alia, providing for the creation of European Border Guards and strengthening the role of the Agency in joint operations) and introduces several references for the full respect of fundamental rights in all Frontex activities . The aim is to investigate if the mechanisms introduced to promote and monitor human rights are consistent with the Agency's obligations to respect human rights, in the light of the recent inquiry promoted by the European Ombudsman. A particular focus will concern the question of the allocation of responsibility among Members States and Frontex in case of violations of human rights during joint operations at sea, and the legal remedies available for individuals.

A responsible lender? The European Investment Bank’s environmental, social and human rights accountability

This article examines the principles of accountability applied by the European Investment Bank in comparison with the practices of other Multilateral Lending Institutions. After a brief description of the EIB and its activities, the substantive and procedural principles governing the EIB's external accountability are reviewed. The substantive accountability principles considered are the applicable rules of the EU legal order and the voluntary human rights, social and environmental principles and standards which the EIB has identified for itself and committed to follow throughout its operations. The article evaluates the extent to which these norms form a credible normative framework against which the EIB's lending practices can be appraised. From a procedural accountability point of view, the article assesses the transparency and participation policies of the EIB, as well as the mechanisms offered to external stakeholders to seek redress from the EIB in case they are wronged by one of its decisions. The redress mechanisms analysed are the recent EIB's Complaints Office, the European Ombudsman and the Court of Justice. We conclude that the EIB should take more advantage of its being subjected to the EU human rights, social and environmental rules and of the EU judicial apparatus in order to upgrade its substantive and procedural accountability towards external stakeholders.

The Role of the European Ombudsman in Competition Proceedings: A Second Guardian of Procedural Guarantees?

The Role of the European Ombudsman in Competition Proceedings: A Second Guardian of Procedural Guarantees?

The Impact of the European Ombudsman on the European Commission: Improvements in Methods of Operation and Evolving Principles of European Good Governance

“The way institution reacts to complaints is a key indicator of how citizen-centered it is.” Nikiforos Diamandouros, European Ombudsman. One of the harshest criticisms towards the EU is that it is an undemocratic union. Instead of vesting the power to initiate laws into a democratically elected body, the EU has granted this power to the European Commission, a massive, bureaucratic machine which is non-obvious and inaccessible to individuals. Besides its significant law-making powers, the Commission also has major executive powers. It makes most of the administrative decisions of the Union that directly concern individuals. Finally, the Commission has broad law enforcement powers, prosecuting possible infringements by member states in the European Court of Justice (“ECJ”). This seeming omnipotence of the Commission directly contradicts the separation of powers that is generally viewed as one of the guarantees of democracy. When European integration culminated in the creation of the European Union and EU citizenship in 1993, there was a dire need to address the lack of transparency in the institutional structures. A concrete response to this need was the institution of the European Ombudsman to give the EU “a more human face.”

A Responsible Lender? The European Investment Bank's Environmental, Social and Human Rights Accountability

This article examines the principles of accountability applied by the European Investment Bank in comparison with the practices of other Multilateral Lending Institutions. After a brief description of the EIB and its activities, the substantive and procedural principles governing the EIB’s external accountability are reviewed. The substantive accountability principles considered are the applicable rules of the EU legal order and the voluntary human rights, social and environmental principles and standards which the EIB has identified for itself and committed to follow throughout its operations. The article evaluates the extent to which these norms form a credible normative framework against which the EIB’s lending practices can be appraised. From a procedural accountability point of view, the article assesses the transparency and participation policies of the EIB, as well as the mechanisms offered to external stakeholders to seek redress from the EIB in case they are wronged by one of its decisions. The redress mechanisms analyzed are the recent EIB’s Complaints Office, the European Ombudsman and the Court of Justice. We conclude that the EIB should take more advantage of its being subjected to the EU human rights, social and environmental rules and of the EU judicial apparatus in order to upgrade its substantive and procedural accountability towards external stakeholders.

The European Ombudsman’s Role as a Developer of Norms of Good Administration

European Ombudsman, the principle of good administration, norm development, European Code of Good Administrative Behaviour, ethics. This article analyses and discusses the role of the European Ombudsman (EO) as a developer of norms of good administration. Empirical research conducted by the applicant reveals that the EO is actively creating norms of good administration in his decisions on individual complaints. In this article, the normative view will be advanced that the EO has his own task and responsibility in respect of the review of administrative behaviour, which is different from the task and responsibility of the Court. Administrative bodies do not only have to act lawfully but also in accordance with the principle of good administration. In the author's view, the EO has his own responsibility in autonomously developing the ethical standard of good administration and developing norms of good administration and to review administrative behaviour for compliance with that standard. However, not everybody shares the view that the Ombudsman should do something else than the Court. Moreover, objections have been raised against standard-setting activities by the Ombudsman, questioning his democratic credentials and maturity. If the Ombudsman embraces the new view in respect of his role as a creator of norms of good administration, he would have to adapt his current mode of operation in a number of respects.

Insight into a special relation: the European Parliament and the European Ombudsman

According to Arts. 20 (ex Art. 17 TEC) and 24 (ex Art. 21 TEC) of TFEU, European citizens are entitled to apply to the European Ombudsman. This right, stemming from European citizenship, is furthermore explained in Art. 228 TFEU (ex Art. 195 TEC), stating that any citizen of the Union or any natural or legal person residing or having its registered office in a Member State can complain in instances of maladministration in connection with the activities of the Union institutions, bodies, offices or agencies. The European Parliament, as one of these institutions, represents next to the Council of the European Union the legislative power of the EU. From this starting point, the study aims to analyze the type of relation between an institution with decades-long history and an office with a history not much more than a decade and a half.

Decision of the European Ombudsman: Member States have no veto over the release of documents held by the Commission

In this decision, the European Ombudsman echoes a judgment previously issued by the ECJ and extending public access to documents originating from the Member States, used in institutions procedures; if Member States object to disclosure of their documents, they must give convincing arguments based on EU transparency rules.

Ombudsman Rules on Disclosure in Commitments Proceedings

European Ombudsman holds that the preliminary assessment in commitments proceedings is not disclosable under applicable regulation whilst the proceedings are on foot

Transparency in EU Antidumping Investigations: The European Ombudsman Perspective

A recent case presented an opportunity for the European Ombudsman to enhance transparency by allowing access to the confidential file in an antidumping investigation. The Ombudsman's decision is the first ruling under Regulation 1049/2001 regarding public access to European Parliament, Council, and Commission documents insofar as the antidumping investigation is concerned. In its decision, the Ombudsman found no maladministration by the European Commission in refusing the access. The Ombudsman's decision, however, is not without fault. The Ombudsman has afforded too much deference to the Commission and has thereby eroded the integrity of the decision-making process and it has failed to faithfully implement the policy embodied in transparency regulations.

Reflections on the Establishment of a Framework to Promote, Protect and Monitor Implementation of the UN Convention on the Rights of Persons with Disabilities (Article 33(2) CRPD) by the European Union

Article 33(2) CRPD requires States Parties to establish a “framework” which will “promote, protect and monitor implementation” of the Convention. States Parties may designate one or more existing institutions, or establish a new mechanism to carry out these tasks. Whatever approach is adopted, the “framework” must include one or more independent mechanisms which comply with the Paris Principles (Principles relating to the status and functioning of national institutions for protection and promotion of human rights). This obligation also binds the European Union (EU), which has now concluded the Convention. At present there does not exist one EU body or institution which has a mandate that would allow it to carry out the full range of tasks associated with “promoting, protecting and monitoring” implementation of the Convention. However, there exist a number of bodies which may be capable of carrying out elements of these tasks. The purpose of this paper is to reflect on the role which specific EU institutions could play in the implementation and monitoring framework. The following key institutions are examined: the European Union Agency for Fundamental Rights; the European Ombudsman; and the Court of Justice of the European Union. For each institution, it is reflected on what role, if any, they could play in each of the three core tasks of promoting, protecting and monitoring implementation, and the extent to which the institution in question complies with the Paris Principles. In addition, the potential role of a number of other EU institutions, including the European Parliament, is also considered.

Postmarketing Safety Surveillance

Management of spontaneous reports remains one of the most important activities in postmarketing surveillance. Increasingly, spontaneous reporting data are publically available, particularly following the criticism from the European Ombudsman over data secrecy by the European Medicines Agency in August this year. New legislation in the EU could mean the number of reports may well increase and so it is timely to reflect on what is best practice for spontaneous case management based on guidance from sources such as the Council for International Organization of Medical Sciences (CIOMS) V Working Group, combined with the latest thinking on systems science. Experience from implementing and maintaining systems in other safety conscious sectors has revealed the overriding importance of the ‘human factor’ in ensuring compliance and managing this through organizational learning, team-working principles and communication. Spontaneous data are very heterogeneous, and it is critical to understand the various types of adverse events and how they differ from adverse reactions. There is a paucity of published data about how to implement effective spontaneous reporting processes. Based on what we understand about quality systems, there needs to be a documented sequence of activities to manage the information, mitigate variation and manage errors and other process-related risks. Close attention needs to be paid to training employees around first interactions with a reporter, as this first step is the most important step in capturing all relevant facts regarding a report and determining subsequent case quality. However, success depends on an organizational structure with defined roles and responsibilities and optimization of personnel interaction ideally through a competency framework. Both quantitative and qualitative tools and metrics are needed to manage process quality, which can be useful for audit. Technology should be automated for efficiency and consistency without crushing ingenuity and innovation. Disappointingly, although companies describe how they have improved process effectiveness, there has been no public benchmarking to enable other companies to examine what works and what does not. This means we have to resort to the principles of quality management and organizational science and adapt them according to the needs of an organization’s spontaneous reporting processes.

Correct Application of EU Law by National Public Administrations and Effective Individual Protection: the SOLVIT Network

This article aims at developing a two-fold analysis. First of all, it discusses the threat that national administrations pose to the integration of the internal market when they infringe EU law in individual decisions. Secondly, it focuses on the SOLVIT network, which provides an alternative to national Courts in protecting the citizens and undertakings that are adversely affected by those infringements. Attention will be paid to the SOLVIT structure as a ‘cooperation network’, to its activity and to how it relates to both the European Commission and the European Ombudsman. In the final part, some conclusions will be drawn as to the effectiveness of the mechanism.

Improving EU Competition Law Procedures by Applying Principles of Good Administration: The Role of the Ombudsman

The European Commission plays a key role in the application of EU competition law. Various mechanisms exist for reviewing the exercise of these powers. They include the European Ombudsman. While the mandate of the Ombudsman goes far beyond competition law—he deals with allegations of ‘maladministration’ in all areas where EU institutions and bodies operate—his role has interesting applications in the competition law field, as demonstrated by his recent Intel decision.

Imitation and supranational politics: some lessons from the European Ombudsman and the European Court of Auditors

Why do certain European Union (EU) institutions look so much like institutions in its member states? The article asserts the reason for this similarity is that these structures have been ‘copied’ from the member states to the EU and provides a historical institutionalist explanation for this process of institutional transfer. The theory of isomorphism provides the analytical foundation for understanding institutional imitation in the EU, while the European ombudsman (EO) and the European Court of Auditors (ECAs) serve as the empirical case studies on which the theory is tested. The article finds that previously existing institutional arrangements matter not only by molding actor preferences in relation to an upcoming institutional transfer, but also by restricting their options and behavior. Specifically, the founding of the EO and the ECAs was the result of pressures exercised by the European Parliament, a supranational body, and the governments of the EU member states. In order to achieve the transfer, those actors had to navigate established institutional practices, primarily the ones associated with the negotiation of new treaties, which are necessary for the addition of new institutions to the EU institutional edifice.