Friday, 01 November 2019
The post as European Ombudsman is up to election by the European Parliament in December.
Among the five candidates, who all got the support of at least 40 MEPs from at least two EU Member States, two persons appear as the main contenders: current ombudsman, Irish Emily O’Reilly, a journalist and former ombudsman in her home country, and Estonian Julia Laffranque, a visiting professor in law and currently judge in the European Court of Human Rights.
The two represent different approaches to the ombudsman institution. Its core task is to investigate complaints by EU citizens and residents against the European Commission and the other EU institutions. O’Reilly clashed with the European Commission when she investigated and found maladministration in the appointment of its former secretary-general, who since then has resigned but not because of the investigation.
While O’Reilly has applied a pro-active approach, Laffranque advocates a return to basics and a balanced approach. “I would like not only to handle cases but to solve them,” Laffranque comments.
The Ombudsman idea originated in Sweden in 1809 and has spread around the world in waves, especially after the second world war. Now there are around 130 ombudsman institutions around the world, in different models and with new tasks, such as data protection, access to public information, protection of human rights and the promotion of good public administration.
In March 2019, the so-called Venice Commission, which provides legal advice on behalf of the Council of Europe, issued 25 principles on the protection and promotion of the ombudsman institutions. The first principle states that the institutions “have an important role to play in strengthening democracy, the rule of law, good administration and the protection and promotion of human rights and fundamental freedoms.”
The Brussels Times met Julia Laffranque for an interview in the European Parliament in Brussels. The word “ombudsman” comes from the Swedish word “ombud”, meaning representative. The ombudsman is sometimes seen as representing the Parliament, which elects him or her to deal with complaints against the EU administration, but the real principal is the law and the EU treaties.
Julia Laffranque has a solid legal background as professor in European law at Tartu university, Estonia, and starts on a personal note. “I feel worried about the situation of citizens in the EU and want to defend their interests,” she says. “As ombudsman, it’s important to be independent and impartial. I see the job as a mission and feel well prepared for it.”
Julia has worked in different positions, starting with preparing Estonia for EU accession and transposing EU law. She was a judge at the Supreme Court of Estonia, with focus on administrative and constitutional law, until 2011 when she was appointed to judge at the European Court of Human Rights. Since 2018, she is also a member of the Scientific Committee of the EU Fundamental Rights Agency.
“I’m used to considering legal problems from both sides, the citizens and the governments,” she says.
There are different models of ombudsman institutions, e.g. rule of law model and human rights model. How would you describe the European Ombudsman (EO)? “I’m familiar with the different models,” she replies and refers to a comparative legal analysis of the European ombudsman institutions, written by a colleague of hers at the European Court of Human Rights.
“The EO is a unique hybrid or mixed model which combines all models. The Ombudsman applies laws but also deals with human rights and good public administration, something beyond strict legality.” She refers among others to article 41 on the right to good administration in the EU Charter of Fundamental Rights.
The EO has set up an annual reward for good administration in the EU institutions and we discussed whether the EO itself needs to improve its own administration. In its annual activity report, the EO publishes performance indicators which show a certain improvement over the years towards its targets.
But about 40 %of the complaints are still outside its mandate and most should have been addressed to the national ombudsman institutions. The number has been on about the same level since 2014. Among admissible complaints, many are not investigated. On a positive point, 88 % of all inquiries were closed within 6 months in 2018.
“There is always room for improvement and the available data shows that European Ombudsman can do more for ordinary peoples,” Julia replies. “There are statistics on performance but they need to be analysed. If elected, I would certainly work together with all staff to make our institution exemplary.”
Besides receiving and examining complaints, the EO can initiate its own reviews or inspections. The impression is that it has become more proactive in recent years as regards so-called strategic inquires that are similar to performance audits but limited in scope and data collection. Will you continue this trend or should own-initiated reviews be limited to recurring complaints against the same authority?
She underlines that the core task of the EO is to investigate complaints and thinks that the power to initiate own inquiries should be used wisely. “The approach has to be more balanced and always have a legal basis.” She is prepared to open own investigations to deal with serious problems raised in complaints from non-EU residents who have been in contact with the EU or contractors funded by the EU.
According to the EU treaty, the Ombudsman is empowered to examine complaints against all EU institutions, with the exception of the Court of Justice “acting in its judicial role”. Does this allow the EO to examine court administration and the conduct of judges and is it done?
While investigations of court administration by ombudsman institutions are seldom done, Julia agreed that it is included in the mandate. As regards the conduct of judges, she stresses: “We look foremost at shortcomings at the institutional level.”
A fourth of the complaints to the Ombudsman in 2018 concerned rejections to requests for access to public information. The figure has remained relatively stable over the years. Are the EU bodies too restrictive when granting such access or should the relevant legislation allow more openness?
“The EO should help to facilitate quick access to public documents,” she replies and adds that the situation has changed since 2001 when the regulation on access to EU information entered into force. Coming from Estonia, a model of e-government, she favours proactive transparency in the public administration.
“Most documents are already available digitally and there is no reason for an agency to deny access to such documents. The EO is there to help the citizens to get access to public information but also to help the administration to apply the legislation correctly.”
The Ombudsman institution is a kind of alternative dispute resolution mechanism and mediation can be seen as way of resolving disputes informally in certain types of complaints. Is this something you might apply if you would be elected to EO?
“Mediation is a methodology which is applied by special bodies,” Julia replies, “I would work with the EU institutions to possibly arrive at friendly settlements; it’s also a kind of mediation. The European Ombudsman has also an educative role to avoid that disputes rise at the first place.”
The protection of whistle-blowers has been an issue in EU member states and the EO has launched inquiries into the internal rules of the EU institutions. Are the current rules and procedures adequate or applied correctly?
“It’s an important topic. The new EU directive on protection of whistle-blowers accords new tasks to the national ombudsman institutions and I intend to discuss this with them if elected,” she replies. “During my first half year, I will visit all members of the European Network of Ombudsmen. We need to share good practice and shape the European Network of Ombudsmen a new for it to be really effective.”
“The ombudsman institution was created by the Treaty of Maastricht as a separate institution,” Julia concludes. “The EO helps to strengthen human rights protection, democracy and rule of law. The EO is elected by the European Parliament but does not represent the Parliament. The EO swears an oath of independence before the Court of Justice.“
“As a judge, I’m used to act independently,” she says and refers to the Venice principles. The sixth principle states that the ombudsman “shall be elected or appointed according to procedures strengthening to the highest possible extent the authority, impartiality, independence and legitimacy of the Institution.”
The Brussels Times