Brussels, 26/05/2000 (Agence Europe) - Speaking before the European Parliament's Committee on Constitutional Affairs, European Ombudsman Jacob Soederman explained the reasons for his request to have the statute of the Ombudsman amended so as to get rid of the restrictions on (1) access to documents, (2) hearings of officials and other agents of Community bodies. He was speaking in the perspective of the report that the European Parliament has to draw up on the draft revision of Article 3 that Mr. Soederman forwarded to EP President Nicole Fontaine last December. As we stand, this article on the Statute of the Ombudsman provides for access to a file being able to be refused "for duly justified secret reasons" and for officials "speaking on behalf and on the instructions of their administration and remaining tied by the obligation of professional secrecy".
The Ombudsman criticised the particularly imprecise nature of "duly justified secret" and considers that these restriction are both unnecessary and inappropriate. Mr. Soederman explained that the very principle of an investigation by the Ombudsman means that the citizen has the right to hope that the Ombudsman will have access to all documents and information, even if this information may not be revealed to the public in its entirety, for confidential reasons. He also recalled that there had "never been leaks from European Ombudsmen" (nor, moreover, from national ombudsmen). National ombudsmen have access to all the documents in their countries, Soederman recalled, saying that he could not understand why the European Ombudsman should not have access to the documents of Member States if these were useful for the investigation. According to him, "Parliament should knock at the Council's door to secure this result".
Mr. Soederman also regards as unacceptable the restrictions set for the hearing of witnesses. Taken by the letter, these restrictions could even force a witness to lie (for example, to conceal a case of fraud) if they should have received orders along these lines from their hierarchical superiors. In answer to a question, he also said he could not understand why the hearing of witnesses should be limited to officials. The Ombudsman should also be able to hear European Commissioners who must not appear to be above the law.
In practical terms, the European Commission has generally always finished by allowing the Ombudsman to consult documents, but fairly often after lengthy haranguing. In the framework of an investigation concerning a complaint in 1998 relating to the metro in Thessaloniki, the Ombudsman heard oral depositions from five officials. The transcripts of these testimonies blatantly demonstrate that they were made "in the name and on the instruction of their administrators and remain tied by the obligation of professional secrecy". The Ombudsman considers that these witnesses acted as best as possible in the existing legal framework but "cannot guarantee the European Parliament and citizens that the sole aim of these testimonies was to shed light on the truth."
The Commission rejected the Ombudsman's request aimed at hearing Commissioner Monti as Article 3 of the Statute does not provide for this possibility. Still in the same case, the Commission refused the Ombudsman access to a part of the documents due to the fact that they came from a private company and were protected by trade confidentiality. The Commission finally agreed to the documents' being consulted on condition that the Ombudsman agreed to relieve the Commission of all responsibility relating to any disclosure the information contained in these documents. The Ombudsman refused to sign such a text, both out of principle and because his doing seemed to mean that he would have to take responsibility for disclosure by anyone, including Commission personnel.
During the discussion, Teresa Almeida Garrett (Portuguese, EPP), rapporteur, broadly shared Mr. Soederman's concerns, and British Liberal-Democrat Andrew Duff denounced the Commission's "culture of secrecy", whereas Sylvia-Yvonne Kaufmann (German, United Left) was indignant at hearing that the Commission had asked the Ombudsman to sign such a clause. As for Jose Maria Gil-Robles (Spanish, EPP), he wondered what the chances were of there being any outcome in negotiations on amending the statute of the Ombudsman, recalling that the agreement on the statute had been secured thanks to the efforts, at the time, of the Belgian Presidency of the Council. Mr. Gil-Robles noted that, more than the European Commission, it was the Member States that had created difficulties. Italian Green, elected in Belgium, Monica Frassoni, said that she had a different recollection regarding the attitude of the European Commission, and considered that the new negotiations risked being difficult. As for the Chairman of the Committee on Constitutional Affairs, PDS member, Giorgio Napolitano, he hoped for details on the four cases in which, in his report for 1998, Mr. Soederman says he had had difficulties in obtaining documents: in one case, concerning the metro in Thessaloniki, the point of departure had been a complaint from citizens, he recalled, wondering if that had also been the case for the other three or if they were own-initiative reports by the Ombudsman (which, Mr. Napolitano noted, tend to overlap with other investigations). In addition, regarding Olaf investigations in the European Parliament, Mr. Napolitano wondered whether Parliament did not risk appearing "rather closed", following the appeal lodged by a "minority" of MEPs and that has "been heard" by the Court of Justice (appeal on Olaf searches of the offices of MEPs, lodged by Willi Rothley and 71 other MEPs who, while waiting for the judgement as to substance, secured the suspension of the EP's decision in plenary on the subject).