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Document 01994D0262-20080731

Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom)

ELI: http://data.europa.eu/eli/dec/1994/262/2008-07-31

1994D0262 — EN — 31.07.2008 — 002.001


This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents

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DECISION OF THE EUROPEAN PARLIAMENT

of 9 March 1994

on the regulations and general conditions governing the performance of the Ombudsman's duties

(94/262/ECSC, EC, Euratom)

(OJ L 113, 4.5.1994, p.15)

Amended by:

 

 

Official Journal

  No

page

date

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DECISION OF THE EUROPEAN PARLIAMENT of 14 March 2002

  L 92

13

9.4.2002

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DECISION OF THE EUROPEAN PARLIAMENT of 18 June 2008

  L 189

25

17.7.2008




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DECISION OF THE EUROPEAN PARLIAMENT

of 9 March 1994

on the regulations and general conditions governing the performance of the Ombudsman's duties

(94/262/ECSC, EC, Euratom)



THE EUROPEAN PARLIAMENT,

Having regard to the Treaties establishing the European Communities, and in particular Article 138e (4) of the Treaty establishing the European Community ►M2  ————— ◄ , Article 107d (4) of the Treaty establishing the European Atomic Energy Community,

Having regard to the opinion of the Commission,

Having regard to the Council's approval,

Whereas the regulations and general conditions governing the performance of the Ombudsman's duties should be laid down, in compliance with the provisions of the Treaties establishing the European Communities;

Whereas the conditions under which a complaint may be referred to the Ombudsman should be established as well as the relationship between the performance of the duties of Ombudsman and legal or administrative proceedings;

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Whereas the Ombudsman, who may also act on his own initiative, must have access to all the elements required for the performance of his duties; whereas to that end Community institutions and bodies are obliged to supply the Ombudsman, at his request, with any information which he requests of them and without prejudice to the Ombudsman's obligation not to divulge such information; whereas access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001 ( 1 ), should be subject to compliance with the rules on security of the Community institution or body concerned; whereas the institutions or bodies supplying classified information or documents as mentioned in the first subparagraph of Article 3(2) should inform the Ombudsman of such classification; whereas for the implementation of the rules provided for in the first subparagraph of Article 3(2), the Ombudsman should have agreed in advance with the institution or body concerned the conditions for treatment of classified information or documents and other information covered by the obligation of professional secrecy; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations;

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Whereas it is necessary to lay down the procedures to be followed where the Ombudsman's enquiries reveal cases of maladministration; whereas provision should also be made for the submission of a comprehensive report by the Ombudsman to the European Parliament at the end of each annual session;

Whereas the Ombudsman and his staff are obliged to treat in confidence any information which they have acquired in the course of their duties; whereas the Ombudsman is, however, obliged to inform the competent authorities of facts which he considers might relate to criminal law and which have come to this attention in the course of his enquiries;

Whereas provision should be made for the possibility of cooperation between the Ombudsman and authorities of the same type in certain Member States, in compliance with the national laws applicable;

Whereas it is for the European Parliament to appoint the Ombudsman at the beginning of its mandate and for the duration thereof, choosing him from among persons who are Union citizens and offer every requisite guarantee of independence and competence;

Whereas conditions should be laid down for the cessation of the Ombudsman's duties;

Whereas the Ombudsman must perform his duties with complete independence and give a solemn undertaking before the Court of Justice of the European Communities that he will do so when taking up his duties; whereas activities incompatible with the duties of Ombudsman should be laid down as should the renumeration, privileges and immunities of the Ombudsman;

Whereas provisions should be laid down regarding the officials and servants of the Ombudsman's secretariat which will assist him and the budget thereof; whereas the seat of the Ombudsman should be that of the European Parliament;

Whereas it is for the Ombudsman to adopt the implementing provisions for this Decision; whereas furthermore certain transitional provisions should be laid down for the first Ombudsman to be appointed after the entry into force of the Treaty on European Union,

HAS DECIDED AS FOLLOWS:



Article 1

1.  The regulations and general conditions governing the performance of the Ombudsman's duties shall be as laid down by this Decision in accordance with Article 138e (4) of the Treaty establishing the European Community ►M2  ————— ◄ and Article 107d (4) of the Treaty establishing the European Atomic Energy Community.

2.  The Ombudsman shall perform his duties in accordance with the powers conferred on the Community institutions and bodies by the Treaties.

3.  The Ombudsman may not intervene in cases before courts or question the soundness of a court's ruling.

Article 2

1.  Within the framework of the aformentioned Treaties and the conditions laid down therein, the Ombudsman shall help to uncover maladaministration in the activities of the Community institutions and bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role, and make recommendations with a view to putting an end to it. No action by any other authority or person may be the subject of a complaint to the Ombudsman.

2.  Any citizen of the Union or any natural or legal person residing or having its registered office in a Member State of the Union may, directly or through a Member of the European Parliament, refer a complaint to the Ombudsman in respect of an instance of maladministration in the activities of Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role. The Ombudsman shall inform the institution or body concerned as soon as a complaint is referred to him.

3.  The complaint must allow the person lodging the complaint and the object of the complaint to be identified; the person lodging the complaint may request that his complaint remain confidential.

4.  A complaint shall be made within two years of the date on which the facts on which it is based came to the attention of the person lodging the complaint and must be preceded by the appropriate administrate approaches to the institutions and bodies concerned.

5.  The Ombudsman may advise the person lodging the complaint to address it to another authority.

6.  Complaints submitted to the Ombudsman shall not affect time limits for appeals in administrative or judicial proceedings.

7.  When the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed without further action.

8.  No complaint may be made to the Ombudsman that concerns work relationships between the Community institutions and bodies and their officials and other servants unless all the possibilities for the submission of internal administrative requests and complaints, in particular the procedures referred to in Article 90 (1) and (2) of the Staff Regulations, have been exhausted by the person concerned and the time limits for replies by the authority thus petitioned have expired.

9.  The Ombudsman shall as soon as possible inform the person lodging the complaint of the action he has taken on it.

Article 3

1.  The Ombudsman shall, on his own initiative or following a complaint, conduct all the enquiries which he considers justified to clarify any suspected maladministration in the activities of Community institutions and bodies. He shall inform the institution or body concerned of such action, which may submit any useful comment to him.

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2.  The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned.

The institutions or bodies supplying classified information or documents as mentioned in the previous subparagraph shall inform the Ombudsman of such classification.

For the implementation of the rules provided for in the first subparagraph, the Ombudsman shall have agreed in advance with the institution or body concerned the conditions for treatment of classified information or documents and other information covered by the obligation of professional secrecy.

The institutions or bodies concerned shall give access to documents originating in a Member State and classed as secret by law or regulation only where that Member State has given its prior agreement.

They shall give access to other documents originating in a Member State after having informed the Member State concerned.

In both cases, in accordance with Article 4, the Ombudsman may not divulge the content of such documents.

Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall continue to be bound by the relevant rules of the Staff Regulations, notably their duty of professional secrecy.

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3.  The Member States' authorities shall be obliged to provide the Ombudsman, whenever he may so request, via the Permanent Representations of the Member States to the European Communities, with any information that may help to clarify instances of maladministration by Community institutions or bodies unless such information is covered by laws or regulations on secrecy or by provisions preventing its being communicated. Nonetheless, in the latter case, the Member State concerned may allow the Ombudsman to have this information provided that he undertakes not to divulge it.

4.  If the assistance which he requests is not forthcoming, the Ombudsman shall inform the European Parliament, which shall make appropriate representations.

5.  As far as possible, the Ombudsman shall seek a solution with the institution or body concerend to eliminate the instance of maldadministration and satisfy the complaint.

6.  If the Ombudsman finds there has been maladministration, he shall inform the institution or body concerned, where appropriate making draft recommendations. The institution or body so informed shall send the Ombudsman a detailed opinion within three months.

7.  The Ombudsman shall then send a report to the European Parliament and to the institution or body concerned. He may make recommendations in his report. The person lodging the complaint shall be informed by the Ombudsman of the outcome of the inquiries, of the opinion expressed by the institution or body concerned and of any recommendations made by the Ombudsman.

8.  At the end of each annual session the Ombudsman shall submit to the European Parliament a report on the outcome of his inquiries.

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Article 4

1.  The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall, in particular, be required not to divulge any classified information or any document supplied to the Ombudsman, in particular sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, or documents falling within the scope of Community legislation regarding the protection of personal data, as well as any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2.

2.  If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities and, insofar as the case falls within its powers, the competent Community institution, body or service in charge of combating fraud; if appropriate, the Ombudsman shall also notify the Community institution or body with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view.

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Article 4a

The Ombudsman and his staff shall deal with requests for public access to documents, other than those referred to in Article 4(1), in accordance with the conditions and limits provided for in Regulation (EC) No 1049/2001.

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Article 5

1.  Insofar as it may help to make his enquiries more efficient and better safeguard the rights and interests of persons who make complaints to him, the Ombudsman may cooperate with authorities of the same type in certain Member States provided he complies with the national law applicable. The Ombudsman may not by this means demand to see documents to which he would not have access under Article 3.

2.  Within the scope of his functions as laid down in Article 195 of the Treaty establishing the European Community and Article 107d of the Treaty establishing the European Atomic Energy Community and avoiding any duplication with the activities of the other institutions or bodies, the Ombudsman may, under the same conditions, cooperate with institutions and bodies of Member States in charge of the promotion and protection of fundamental rights.

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Article 6

1.  The Ombudsman shall be appointed by the European Parliament after each election to the European Parliament for the duration of the parliamentary term. He shall be eligible for reappointment.

2.  The Ombudsman shall be chosen from among persons who are Union citizens, have full civil and political rights, offer every guarantee of independence, and meet the conditions required for the exercice of the highest judicial office in their country or have the acknowledgement competence and experience to undertake the duties of Ombudsman.

Article 7

1.  The Ombudsman shall cease to exercise his duties either at the end of this term of office or on his resignation or dismissal.

2.  Save in the event of his dismissal, the Ombudsman shall remain in office until his successor has been appointed.

3.  In the event of early cessation of duties, a successor shall be appointed within three months of the office's falling vacant for the remainder of the parliamentary term.

Article 8

An Ombudsman who no longer fulfils the conditions required for the performance of his duties or is guilty of serious misconduct may be dismissed by the Court of Justice of the European Communities at the request of the European Parliament.

Article 9

1.  The Ombudsman shall perform his duties with complete independence, in the general interest of the Communities and of the ciitzens of the Union. In the performance of his duties he shall neither seek nor accept instructions from any government or other body. He shall refrain from any act incompatible with the nature of his duties.

2.  When taking up his duties, the Ombudsman shall give a solemn undertaking before the Court of Justice of the European Communities that he will perform his duties with complete independence and impartiality and that during and after his term of office he will respect the obligations arising therefrom, in particular his duty to behalve with integrety and discretion as regards the acceptance, after he has ceased to hold office, of certain appointments or benefits.

Article 10

1.  During his term of office, the Ombudsman may not engage in any other political or administrative duties, or any other occupation, whether gainful or not.

2.  The Ombudsman shall have the same rank in terms of remuneration, allowances and pension as a judge at the Court of Justice of the European Communities.

3.  Articles 12 to 15 and Article 18 of the Protocol on the Privileges and Immunities of the European Communities shall apply to the Ombudsman and to the officials and servants of his secretariat.

Article 11

1.  The Ombudsman shall be assisted by a secretariat, the principal officer of which he shall appoint.

2.  The officials and servants of the Ombudsman's secretariat shall be subject to the rules and regulations applicable to officials and other servants of the European Communities. Their number shall be adopted each year as part of the budgetary procedure ( 2 ).

3.  Servants of the European Communities and of the Member States appointed to the Ombudsman's secretariat shall be seconded in the interests of the service and guaranteed automatic reinstatement in their institution of origin.

4.  In matters concerning his staff, the Ombudsman shall have the same status as the institutions within the meaning of Article 1 of the Staff Regulations of Officials of the European Communities.

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Article 13

The seat of the Ombudsman shall be that of the European Parliament ( 3 ).

Article 14

The Ombudsman shall adopt the implementing provisions for this Decision.

Article 15

The first Ombudsman to be appointed after the entry into force of the Treaty on European Union shall be appointed for the remainder of the parliamentary term.

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Article 17

This Decision shall be published in the Official Journal of the European Communities. It shall enter into force on the date of its publication.



( 1 ) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).

( 2 ) A joint statement by the three institutions will set out guiding principles for the number of staff employed by the Ombudsman and the status as temporary or contract staff of those carrying out enquiries.

( 3 ) See Decision taken by common agreement between the Representatives of the Governments of the Member States on the location of the seats of the institutions and of certain bodies and departments of the European Communities (OJ No C 341, 23.12.1992, p. 1).

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