Nikos Vogiatzis

A ‘European Year of Citizens’? Looking Beyond Decision 1093/2012: Eyeing the European Elections of 2014

Abstract This contribution discusses three pivotal post-Lisbon challenges of EU constitutional law and EU policies vis-à-vis European citizens, using the Decision 1093/2012, which established the European Year of Citizens (EYC) 2013, as a case study or a starting point for further reflection. Because of its silence on these challenges, the Decision unravels them: the need to dissociate legitimacy in the EU from information campaigns and move towards the establishment of additional instruments that will augment democratic legitimacy; the need to reconceptualize the so-called market citizenship, moving beyond references to and reliance upon free-movement rights; and the need to adequately address and protect the rights of third-country nationals. The remainder of this article examines whether the new procedure for the election of the Commission President could turn 2014 a more promising EYC, and considers the provisions of Article 17.7 TEU in relation to the aforementioned threefold constitutional framework.

A Case-Study: Inquiries on Transparency and Access to Documents

This chapter is a case-study on the Ombudsman’s proactive and reactive contribution to transparency and access to documents, an area closely associated with accountability and participation. It begins with a discussion on transparency in more general terms, before moving to the EU legal order and the Court’s case-law on access to documents, in particular. This provides a useful background to assess the own-initiative inquiries or complaints that the Ombudsman has dealt with. The Ombudsman meticulously engages with almost all of the contentious aspects of Regulation 1049, including its exemptions and the application of the overriding public interest test. The procedural requirements of the Regulation is another important area where investigations are being conducted. The Ombudsman relies on the landmark cases of the Court to push for compliance. The current Ombudsman is increasingly using her proactive role to advance transparency (the TTIP and trilogues cases are indicative examples). Still, in certain significant cases the institutions are not ready to implement the Ombudsman’s recommendations or extend (with their belated responses) the length of the inquiry. Alongside the above, the Council has often chosen to question the competence of the Ombudsman to deal with cases involving it.

The Link Between the Role of the European Ombudsman and Democracy

This chapter explores the link between the European Ombudsman and the question of the EU’s democratisation. It shows that the Ombudsman is part of the debates and amendments aiming to render the EU more accessible, legitimate and accountable and that the European Ombudsman herself actually contributes to this democratisation. Indeed, the European Ombudsman’s role and various initiatives and activities can strengthen democracy by rendering the EU more accessible, and promoting a broader understanding of European citizenship. Simultaneously, it is underlined that there are limits to the nature and scope of the Ombudsman’s contribution to democracy. The last sections of the chapter examine to what extent the Ombudsman has legitimacy, is independent (a necessary precondition in order for the Ombudsman to perform her functions) and accountable (which may be viewed as the other side of independence). In the context of the discussion on independence, the chapter queries whether the Ombudsman should unambiguously be classified among classic parliamentary ombudsman institutions.

Introduction: The Office of the European Ombudsman in Its Third Decade of Operation

This chapter explains the objectives of the book and its contribution to the broader literature on EU law and governance. The aim of the book is mainly twofold: to explore the work and method of the European Ombudsman with a view to ascertaining how the office has improved the quality of the EU administration, and to critically reflect upon the existing mandate with a view to discussing proposals for improvement. This contribution also unravels the plethora of principles or arguments related to the notion of ‘good administration’ via a closer examination of cases decided by the office. Chapter 1 also presents a synopsis of the areas that are covered in Chaps. 2- 7.

The Institutional and Constitutional Position of the European Ombudsman

This chapter examines the institutional and constitutional position of the European Ombudsman within the EU architecture. After some initial remarks on the establishment of the office, the chapter explains how the Ombudsman’s mandate is defined by the Treaties, the Statute and the Implementing Provisions. Next, some reflections are provided on the relationship between the European Ombudsman and other EU and national authorities, as well as the interaction between the Ombudsman and citizens/civil society organisations. The Ombudsman’s office own administrative set-up is considered next. Subsequent sections explore two well-known contributions of the office: the creation of the European Code of Good Administrative Behaviour and the inclusion of a right to good administration in the Charter. In addition, the treatment of the Ombudsman by the Union judiciary is discussed, and it is shown that the EU Courts have generally granted the Ombudsman considerable discretion which does not, nonetheless, amount to immunity. The chapter concludes by pointing out that the EU Ombudsman is a distinct actor in EU governance, and this also means that comparisons with domestic offices, while helpful as a source of inspiration (e.g. with regard to exchanges of best practice), cannot always serve as the reference point for the evaluation of the Ombudsman’s work.

Revisiting the Mandate and Practice of the European Ombudsman

This chapter critically examines the present mandate or practice of the Ombudsman and considers pragmatic proposals for improvement. For a number of reasons, the book accepts that it is difficult to find common accord on what a new mandate should look like; thus, it is underlined that these proposals may also be seen as an opportunity for discussion or reflection on the way forward. It should also be acknowledged that proposals for reform often involve additional resources, managing reactions by various actors and, in the EU in particular, a careful consideration of the existing constitutional framework. To that end, the chapter revisits several dimensions of the Ombudsman’s mandate: the available instruments when maladministration is identified (a matter closely associated with compliance); the geographical scope of the mandate, including the role and challenges of the European Network of Ombudsmen; the distinction between political and administrative matters, and how this relates to the notion of maladministration; the Ombudsman’s contribution to political participation and communication with citizens; and the possibility for the Ombudsman to be included among the EU institutions under Article 13 TEU.

Exploring the European Ombudsman’s Method: Analysis of Cases

This chapter analyses the Ombudsman’s method via an examination of cases touching upon a plethora of administrative activities. After some initial observations from the latest Annual Reports, the chapter engages with one of the main features of the EU office: its approach based on law. With regard to the subject matter of the cases, these concern the role of the Commission as the guardian of the Treaties, competition, institutional and policy matters, conflict of interest, human rights, the award of tenders and grants, the execution of contracts, and selection procedures. The Ombudsman has contributed significantly to the improvement of the administrative culture of the EU institutions, either reactively or proactively (notably through the use of own-initiative inquiries). Complainants make also good use of the online interactive guide to receive further advice. Importantly, maladministration is broader than illegality: the EU administration should therefore go beyond its legal obligations. Simultaneously, it is noted that challenging cases occasionally result in delays, whereas elsewhere—again, in sensitive cases—the institutions’ willingness to comply can vary substantially, despite the Ombudsman’s well-reasoned findings. Often, alternative modes of persuasion (such as the communication of the findings to the Presidents of the EU institutions) may be used when a case is closed and a special report or a draft recommendation is not selected. Further remarks are also used as educational advice.

Frontex: Human Rights Obligations and the Role of the European Ombudsman

Nikos Vogiatzis sheds light on Frontex and the role of the European. Frontex’s reluctance to accept a complaints mechanism and, thus, to assume its share of responsibility is indicative of the ongoing tensions in the field of migration to the European Union (EU). Empowering Frontex is likely to raise further issues of human rights protection. To that end, the role of the European Ombudsman is to support efforts to hold Frontex accountable as a means of extra-judicial redress.

THE ADMISSIBILITY CRITERION UNDER ARTICLE 35(3)(b) ECHR: A ‘SIGNIFICANT DISADVANTAGE’ TO HUMAN RIGHTS PROTECTION?

The purpose of this contribution is to provide a critical overview of issues of principle related to the ‘significant disadvantage’ admissibility criterion under 35(3)(b) ECHR, in light of the ongoing debate on the Courts reform. It argues that the admissibility criterion: undermines direct access to justice at the international level; affects the right of individual petition to the Strasbourg Court; constitutes a misunderstanding of the subsidiarity principle within the Convention machinery; urges the Court to consider the merits during the admissibility stage in a sensitive area of adjudication such as human rights; and entails the risk of an indirect classification of rights on the basis of the financial damage suffered by the applicant. The article links these points with the discussion on the Courts reform and considers alternative proposals to reduce its workload. It concludes by underlining that the ‘significant disadvantage’ criterion could be a suitable opportunity to address questions related to the Courts legitimacy, including the ECtHRs precise role and function within the Convention.