The union's ombudsman rules

Paul Fogo is a senior attorney at the Warsaw office of Miller, Canfield, Paddock & Stone.

By now most of us do not have to be convinced about the benefits of joining the European Union. Even my wife, the greatest defender of everything Polish, supports membership.

With membership, however, comes a new set of laws and a new layer of government. Hopefully, a new layer of government will not translate into a new layer of red tape. The EU has apparently considered this possibility, and in response it has created the Office of the European Union Ombudsman. Established by the Maastricht Treaty in 1995, the office of the European ombudsman is charged with investigating and resolving complaints brought against EU institutions, either by individual citizens or corporate entities. Specifically, Art. 43 of the EU Charter of Fundamental Rights provides that "any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the ombudsman cases of misadministration in the activities of the Community institutions or bodies." Notice that this right to seek help is not limited to Polish citizens, but includes corporate citizens and foreign nationals alike.

To date the ombudsman has adjudicated more than 10,000 complaints, ranging from tax compliance to sex discrimination. The ombudsman has jurisdiction to investigate complaints against EU institutions. Unfortunately, the ombudsman is not empowered to investigate complaints against national, regional or local government agencies, even if the complaint involves the administration of EU law at the local level. To seek recourse against a local agency, an individual may turn to the Polish ombudsman.

The EU ombudsman has jurisdiction over the following institutions:

- EU Commission

- Council of the EU

- EU Parliament

- Court of Auditors

- EU Central Bank

- EU Investment Bank

- EU Economic and Social Committee

- Europol

To a limited degree the ombudsman may also investigate complaints against the Court of Justice with respect to administrative matters, but not verdicts.

What exactly is the ombudsman able to do? According to Art. 3 of the implementing statute, the ombudsman "shall conduct all enquiries which he considers justified to clarify any suspected misadministration." Can the ombudsman compel compliance? Yes and no. EU institutions are obliged to furnish any requested information and to provide access to their files during an investigation. However, the ombudsman is not empowered to compel compliance. He is only able to "make recommendations with a view to putting an end" to the offending action. Despite this lack of enforcement power, the ombudsman has been very successful in resolving citizen complaints.

The ombudsman is usually able to achieve a positive result by merely bringing the complaint to the attention of the offending agency or by negotiating a friendly solution. If this fails, the ombudsman may seek compliance by preparing a formal written request to the agency, and if necessary, by submitting a special report to the European Parliament.

What kinds of complaints does the Ombudsman receive? The largest number involves an agency's refusal to disclose requested information to a citizen or the lack of transparency in the award of a contract. The second most common complaint involves excessive delays in the adjudication of an administrative matter or payment of a fee, followed by allegations of sex discrimination, abuse of power, procedural or legal errors and negligence. For example, the ombudsman investigated a complaint brought against the EU Commission for sex discrimination in its hiring practices. The offending practice, a rule preventing employees who had been assigned to work at the European Commission by their home governments from working overtime (and hence earning more), affected a greater number of women than men. Following the recommendation of the ombudsman, the commission rescinded this rule.

Which institutions receive the most complaints? By far the largest number of complaints are lodged against the EU Commission, followed by the EU Parliament, Council of the EU, EU Investment Bank and Court of Justice.

How can you file a complaint? First, you must fill out a two-page form that you can download from the Internet at www.euro-ombudsman.eu.int. If you have a question that you would like to ask the ombudsman, he can be reached at (33) 388-172-313.

But remember that before the ombudsman can help, you need to vote Yes on June 7 and 8.