Changes from report parliamentary committee draft to plenary report

The annual report on the activities of the European Ombudsman in 2022 was formally submitted to the President of the European Parliament, Roberta Metsola, on 28 April 2023 and the Ombudsman, Emily O’Reilly, presented the report to the Committee on Petitions in Brussels on 27 June 2023.

The Ombudsman’s mandate is enshrined in Art. 24 and 228 of the Treaty of the Functioning of the European Union (TFEU). Article 24 of the TFEU, as well as Article 43 of the EU Charter of Fundamental Rights, establishes the right to complain to the European Ombudsman. According to Art. 228 TFEU, the European Ombudsman elected by the European Parliament, is empowered to receive complaints from any citizen of the Union, or any natural or legal person residing or having its registered office in a Member State, concerning instances 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.

An additional cornerstone, particularly bound to the Ombudsman’s role, is Article 41(1) of the EU Charter of Fundamental Rights where it is underlined that ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union’.

The European Ombudsman helps people, businesses, and organisations facing problems with the EU’s administration by dealing with complaints they submit, as well as by seeking to promote good administrative practices by proactively identifying broader systemic issues within the EU institutions. The Ombudsman is not always in a position to inquire into all complaints received but her Office nonetheless tries to help all those who seek assistance, for example by providing advice on other possibilities for redress.

In 2022, 16 569 citizens called on the Ombudsman’s services for help, of whom 13 313 were given advice through the Interactive Guide on the Ombudsman’s website, while 1 038 remaining requests for information were replied to by the Ombudsman’s services and 2 238 were handled by the Ombudsman as complaints.

Out of the total number of 2 238 complaints processed by the Ombudsman in 2022, 755 fell within the Ombudsman’s mandate and 1 483 fell outside the scope of the Ombudsman’s mandate.

In 2022, the European Ombudsman processed 1 483 complaints that did not fall within her mandate, mostly because they did not concern the work of the EU administration. Over 40% of such complaints came from Spain, Poland and Germany, with Spain alone accounting for half that figure. Their out of mandate complaints primarily related to problems encountered with national, regional or local public bodies, governments and public service bodies, and national or international courts (such as the European Court of Human Rights). Citizens also directed a large number of complaints at private entities, including banks, online businesses and platforms and airlines. The Ombudsman also received many out of mandate complaints related to the humanitarian crisis in Ukraine following Russia’s invasion. The Ombudsman continued to receive a high number of out of mandate complaints related to the COVID-19 pandemic. These predominantly concerned measures national authorities put in place in response to the pandemic and the right to move freely within the EU. Other out of mandate complaints concerned EU institutions, but were related to political or legislative work.

The Ombudsman advised complainants what other bodies could help and clarified the Ombudsman’s mandate. With the complainant’s agreement, the Ombudsman also transferred complaints to suitable members of the European Network of Ombudsmen (ENO). Where complainants were unhappy with specific EU legislation, the Ombudsman generally advised them to turn to the European Parliament’s Committee on Petitions. Complainants, who raised other issues, including the implementation of EU law, were referred to the European Commission, national or regional ombudsmen, or to EU networks such as Europe Direct, Solvit and the European Consumer Centres.

In 2022, the Ombudsman opened 348 inquiries, of which 344 were complaint-based and four were own-initiative inquiries, while closing 330 inquiries (325 complaint-based and 5 own-initiative inquiries).

Most of the inquiries concerned the Commission (197 inquiries or 57,1 %), the next largest number concerned the European Personnel Selection Office (EPSO) (22 inquiries or 6,3 %), the Parliament (19 inquiries or 5,5 %), European External Action Service (EEAS) (16 inquiries or 4,6 %). The rest were distributed as follows: the European Border and Coast Guard Agency (FRONTEX) (14 inquiries or 4.3 %), the European Union Aviation Safety Agency (7 inquiries or 2 %) other EU agencies (23 inquiries or 6,7 %) and other institutions (46 inquiries or 13,5 %).

The inquiries closed by the European Ombudsman in 2022 where settled by the institution, a solutions was achieved in 152 cases (46.1%), there was no maladministration found in 122 cases (37.0%) and only in 15 cases the Ombudsman found maladministration and a recommendation was agreed by the institution (4.5%).

The length of inquiry of cases closed by the European Ombudsman was less than 6 months on average as: 157 cases (48%) where closed within 3 months, 126 cases (38%) were closed within 3 to 12 months, 36 cases (11%) were closed within 12 to 18 months and only 11 cases (3%) were closed after more than 18 months.

In 2022, the EU institutions cooperated satisfactorily with the Ombudsman in 79% of the cases. Of the 33 proposals the Ombudsman made to correct or improve their administrative practices, the EU institutions reacted positively to 26 of them.

The Ombudsman’s top three concerns in the inquiries closed in 2022 were transparency and accountability (access to information and documents) (32 %), culture of service (20 %) and respect for fundamental rights (15 %). Other concerns include proper use of discretion (including in infringement procedures), recruitment, good management of personnel issues, respect for procedural rights, proper management of infringement procedures, sound financial management, public participation in EU decision making, ethical issues and grants, procurement, contracts.

In addition to the Ombudsman’s core work on complaints, the Ombudsman also conducts wider strategic inquiries and initiatives into systemic issues with EU institutions. In line with the Ombudsman’s ‘Towards 2024’ strategy, 2022 saw an increase in the strategic work of the Ombudsman, with a greater number of inquiries and initiatives opened on a diverse range of issues. In its strategic work in 2022, the Ombudsman’s office opened new strategic inquires on different topics:

 Ethical issues

Maintaining high ethics standards in the EU administration is a key area of the Ombudsman’s work. This covers the implementation of rules on ‘revolving doors’, conflicts of interest, and meetings with lobbyists.

The Ombudsman asked the Commission for information on how it is ensuring transparency and a balanced representation of interests in relation to the Common Agricultural Policy (CAP). The Ombudsman made several observations on this issue, asking for more discussion on CAP with citizens and other stakeholders in addition to representatives from the agricultural sector. The Ombudsman encouraged the Commission to proactively publish more information about the approval of Member States’ ‘strategic plans’, which detail how CAP objectives will be met.

The Ombudsman opened an own-initiative inquiry to assess how the Commission ensures that its interactions with tobacco interest representatives are transparent. The inquiry is a follow-up to previous inquiries in the area, including one, which in 2016 concluded that the Commission was failing to meet its obligations under the World Health Organisation’s Framework Convention on Tobacco Control.

The role of the Ombudsman is also to anticipate public interest issues and pre-emptively ask for information from the EU administration. In this light, the Ombudsman asked the Commission for more details about how it ensures that external experts involved in evaluating project proposals under the European Defence Fund (EDF) do not have conflicts of interest. The Ombudsman noted that the list of experts is not public, making it more important that ethics obligations are implemented.

The Ombudsman welcomed the Commission’s proposal to amend the Financial Regulation to include the possibility to reject tenderers if they have a professional conflict of interest. The amendment was in response to the Ombudsman’s findings about the Commission’s decision to award BlackRock Investment Management a study contract in an area of regulatory and financial interest to it.

 ‘Revolving doors’

In 2022, the Ombudsman Office continued to focus on how the EU administration deals with the ‘revolving doors’. The Ombudsman continued in 2022 the broad strategic inquiry started in February 2021, into how the Commission handles revolving door situations. The strategic inquiry – covering 100 files – focuses into how the Commission handles moves by staff to the private sector. The Commission was asked to publish decisions on staff members’ new jobs faster to allow for timely public scrutiny. The Commission replied that, for cases where there is a reputational risk for the Commission, it would ask former staff to report on how they are complying with any restrictions, such as on lobbying former colleagues. It also said it would publish its annual overview of senior staff members requesting permission to move to new employment, and its assessment of these requests, faster than previously. In addition, staff on unpaid leave are now forbidden from taking employment in areas where there is a risk of conflict of interest.

After conducting an own-initiative inquiry into how the European Central Bank (ECB) manages revolving doors, the Ombudsman asked the bank to apply stricter rules to moves by staff to the private sector, and particularly to the financial sector. The Ombudsman asked that more staff are subject to stricter cooling-off requirements, and that the ban on former senior ECB staff lobbying their former colleagues is increased to one year. The Ombudsman made several suggestions to the European Investment Bank (EIB) to strengthen how it assesses moves by members of its Management Committee to the private sector. This followed the EIB’s decision to approve a move by a former Vice-President to a utility company that had received loans from the bank.

 Accountability in decision making

EU citizens have rights to access documents held by the EU institutions and the Ombudsman serves as a redress mechanism for those who face difficulties to access to these documents.

In September 2022, the Ombudsman launched a public consultation to evaluate whether citizens have access to up-to-date information related to the environment. The questions were aimed at finding out how easy it is for the public to obtain documents or information related to this area, and how citizens could be more involved in the preparation and implementation of green policies. The consultation received 18 replies and the Ombudsman will be taking follow-up steps in 2023. The Ombudsman’s Office reached out to the Aarhus Convention Compliance Committee Secretariat to learn more about its role in complaint-handling on environmental matters.

Three Civil Society Organisations (CSOs) complained that the European Investment Bank (EIB) publishes too little information, and too late, about the projects it finances. The Ombudsman considered insufficient EIB’s follow up and asked to step up the scrutiny of the Bank’s activities.

The Recovery and Resilience Facility (RRF) forms part of an unprecedented EU-financed stimulus package to help Member State economies recover from the COVID-19 pandemic. The Ombudsman asked the Commission how it would ensure accountability of fund spending, how the public could see which projects will be financed and if promised milestones have been reached. The Ombudsman also received complaints about refused access to documents related to the recovery plans of Germany, France, the Netherlands, Sweden, and Denmark. In her analyses, the Ombudsman stressed the importance of high transparency standards in the management of the RRF.

A group of Civil Society Organisations (CSOs) and associations turned to the Ombudsman after the Commission counted the almost 123 000 individual responses – submitted in one document – to a public consultation on the Sustainable Corporate Governance Initiative as a single response with multiple signatories. It also did not summarise the main concerns raised via the campaign in a timely and adequate way. The Ombudsman found this approach regrettable and asked that in the future the Commission provide better information on the responses received from citizens through campaign platforms.

The Commission explained how it collects information concerning the implementation of the EU’s General Data Protection Regulation in Ireland following concerns that it had not collected sufficient information to be able to assess how the law is being applied. The Ombudsman found the explanations satisfactory but encouraged the Commission to be more prescriptive in terms of its information needs so that it can adequately monitor this important area.

The Ombudsman asked the Council whether it could proactively release more documents related to the adoption of sanctions against Russia. The Council provided a detailed and convincing explanation as to why even marginal additional transparency is hard to achieve in this area now.

 Access to documents

The Ombudsman has reformed the office internally to allow it to work more efficiently on complaint-handling and tackling systemic issues within the EU administration. This has led to faster complaint-handling times, as well as important positive results in the EU administration across a range of areas.

The Ombudsman continued in 2022 to promote the Office’s work as a redress mechanism for those seeking public access to documents. Building on the Office’s expertise in this area, the Ombudsman published a detailed guide on the right of public access to EU documents. This online tool includes a Q&A for a general audience, as well as an in-depth guide for expert stakeholders and transparency activists. The guide provides comprehensive information on the practical and legal aspects of the right of public access.

The European Maritime Safety Agency (EMSA) agreed to publish on its website extensive information on detections of possible oil spills from the year 2015 onwards. The Ombudsman praised EMSA’s action, which followed a complaint by an investigative journalist platform.

Following an inquiry, the Council gave access to Member States’ initial comments and questions on the draft Digital Markets Act but only after legislative discussions on the law had finished. The Ombudsman has asked the Council to grant faster access to legislative documents so that the public can effectively participate in discussions on draft EU laws.

The Commission granted public access to documents concerning the purchase of 1.5 million medical masks almost two years after the initial request.

The Ombudsman launched two inquiries on delays in handling document requests: one concerned the length of time it takes the Commission to deal with public access requests; the second related to how the European Border and Coast Agency (Frontex) handles such requests.

 Fundamental rights

In 2022, the Ombudsman asked the European Border and Coast Guard Agency (Frontex) to improve its accountability after conducting a strategic inquiry into how it complies with its fundamental rights obligations. The inquiry examined the transparency of Frontex’s joint operations with national authorities at the EU’s borders, how it identifies fundamental rights concerns and how it monitors the return of people seeking asylum. The Ombudsman identified several areas where Frontex could improve its practices and made suggestions on how to improve the accessibility of Frontex’s complaints mechanism for people who feel their fundamental rights have been breached.

Another key inquiry linked to fundamental rights focused on how the Commission ensures Croatian authorities respect fundamental rights in the context of border management operations. The Ombudsman criticised the Commission’s delay in setting up a monitoring mechanism for border management by the Croatian authorities and asked the Commission to report back by early 2023 on the steps it has taken to strengthen fundamental rights compliance in Croatian border operations receiving EU funds.

The Ombudsman asked the Commission to provide details on how it ensures respect for human rights in the international trade agreements the EU signs and asked the Commission to set up a new and separate complaint-handling portal for alleged human rights abuses and to examine how it can be made accessible for human rights-related complaints by civil society organisations and other stakeholders in countries with which the EU has trade deals.

In 2020, the Ombudsman published a set of practical recommendations on the use of the official EU languages when communicating with the public. These included establishing a clear policy on use of official languages, publishing the policy, and applying it consistently. In autumn 2022, the network of EU agencies announced that, based on the Ombudsman’s recommendations made in 2020, it had agreed guidelines and a template on multilingual policies.

 The evolving role of the Ombudsman

On 17-18 November, the European Ombudsman and the European University Institute’s Department of Law and School of Transnational Governance held a conference in Florence, Italy to examine how the European Ombudsman has evolved in its role of ensuring an independent, transparent, and accountable EU administration. The event brought together diverse perspectives from academia, civil society, the EU administration, and the European Ombudsman’s office. The various panels discussed how the Ombudsman’s role has developed over the years, how the Ombudsman’s ‘soft power’ can encourage positive change, and the role of transparency in achieving accountability in the EU institutions.

The annual European Network of Ombudsmen (ENO) conference addressed some of the major issues facing ombudsmen, such as upholding the rights of those fleeing the war in Ukraine and welcomed the Ukrainian and Moldovan ombudsman offices to the Network. The 2022 ENO annual conference in Strasbourg focused on the role ombudsmen can play in times of crisis.

 The relations with the European Parliament

In 2022, the European Ombudsman maintained close cooperation with the European Parliament, presenting key inquiries to committee meetings and participating in parliamentary hearings and workshops on topics related to the EU administration, fundamental rights, and access to documents. In 2022, the Ombudsman participated in different events and meetings organised by the Petitions Committee, such as a workshop on the rights of people with disabilities. She also met with the Petitions Committee Chair Dolors Montserrat to discuss their cooperation when it comes to addressing citizens’ concerns and the PETI Committee showed support for the Ombudsman’s work and strategy during the annual exchange of views on the Ombudsman’s activities.

 The UN Disability Rights Convention

As a member of the framework, the Ombudsman pays close attention to the EU administration’s implementation of the UNEU Framework for the UN Convention on the Rights of Persons with Disabilities. In addition, the Ombudsman dealt with important inquiries in 2022 related to the rights of persons with disabilities. In April, the Ombudsman closed her own initiative investigation into how the European Commission monitors EU Structural and Investment funds to ensure they are used to promote the right of persons with disabilities to independent living and inclusion in the community. In October 2022, the Ombudsman also hosted a hybrid seminar for ENO members to exchange information and experiences related to the standards of the EU web accessibility directive and its implementation.