A3-0356/93
Resolution on
-the interinstitutional declaration on democracy and transparency and the Interinstitutional Agreement on procedures for implementing the principle of subsidiarity
-the decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties
-the arrangements for the proceedings of the Conciliation Committee under Article 189b EC
The European Parliament,
-having regard to the Treaty on European Union, in particular Article F thereof and Articles 3b, 138e and 189b EC, which lay down different implementing procedures,
-having regard to its resolution of 14 October 1992 on the state of European Union and the ratification of the Maastricht Treaty,
-having regard to its resolution of 17 December 1992 on the European Ombudsman - regulations and general conditions governing the performance of the Ombudsman's duties,
-having regard to the opinion of the Commission of the European Communities on the decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties,
-having regard to its resolution of 18 November 1992 on the implementation of the principle of subsidiarity,
-having regard to its resolution of 17 December 1992 on the conciliation procedure,
-having regard to the Interinstitutional Agreements initialled on 25 October 1993,
-having regard to the declaration of the European Parliament delegation on democracy, transparency and subsidiarity included in the minutes of the Interinstitutional Conference of 25 October 1993,
-having regard to the Interinstitutional Agreement (1993-1999) on budgetary discipline and the improvement of the budgetary procedure of 29 October 1993,
-having regard to its opinion of 17 November 1993 on the proposal for a Council regulation amending the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities,
-having regard to the report of the Committee on Institutional Affairs (A3-0356/93),
A.whereas application of the principle of subsidiarity may have financial consequences for the Community budget,
B.recalling that in the 1994 draft budget - Section I - Parliament - an annex was created entitled 'Ombudsman',
1.Approves the Interinstitutional Declaration on democracy, transparency and subsidiarity, the Interinstitutional Agreement on procedures for implementing the principle of subsidiarity, the Decision on the regulations and general conditions governing the performance of the Ombudsman's duties pursuant to Article 183e(4) EC, the arrangements for the proceedings of the Conciliation Committee under Article 189b EC and the Declaration by the European Parliament on democracy, transparency and subsidiarity, the text of which is attached;
2.Regrets, however, the limitation placed by the Council on the concept of transparency and democracy which, under Article 138c EC, is also to be exercised by means of temporary committees of inquiry which cannot now be set up because of the Council's failure to act;
3.Considers, however, that there should be total transparency of the legislative procedure;
4.Believes that the conciliation procedure should be initiated at the request of the Council or the Parliament and therefore that the proposal that the Conciliation Committee should be convened by the Council, in accord with Parliament, is not in itself satisfactory;
5.Considers that these Interinstitutional Agreements are no more than a first step towards the democratization and transparency of the Community institutions and, in particular, of the legislative procedure;
6.Reiterates its position that the adoption of all legislative texts in a public vote is a sine qua non of democracy and transparency in the European Union;
7.Expects the Council to honour its own declarations in Birmingham and Edinburgh and to take with some sense of urgency the measures necessary to ensure that its working methods reflect authentic transparency and democracy within the Union;
8.Approves each agreement in accordance with its relevant procedures (Articles 3b, 138c and 189b EC);
9.Instructs its President to forward this resolution to the Council, the Commission and the parliaments of the Member States and to publish the European Parliament's Decision on the regulations and general conditions governing the performance of the Ombudsman's duties in the Official Journal as soon as the Council has given its formal approval to the interinstitutional agreements.
ANNEX
INTERINSTITUTIONAL DECLARATION ON DEMOCRACY, TRANSPARENCY AND SUBSIDIARITY
1.The European Parliament, the Council and the Commission, as Institutions of the European Union will, within the framework of the legislative procedure, respect in full the democratic principles on which the systems of government of the Member States are based and they reaffirm their attachment to the implementation of transparency by the Institutions.
2.As soon as Parliament has adopted its resolution on the annual legislative programme proposed by the Commission, the Council will state its position on the programme in a declaration and undertake to implement as soon as possible the provisions to which it attaches priority, on the basis of formal Commission proposals and in compliance with the procedures laid down by the Treaties.
3.In order to increase the transparency of the Community, the Institutions recall the measures which they have already taken in this direction:
The European Parliament, in amending its Rules of Procedure on 15 September 1993, has confirmed the public nature of meetings of its Committees and of its plenary sittings.
The Council has agreed to take steps to:
open some of its debates to the public;
publish records and explanations of its voting;
publish the common positions which it adopts under the procedures laid down in Articles 189b and 189c, and the statement of reasons accompanying them;
improve information for the press and the public on its work and decisions;
improve general information on its role and activities;
simplify and consolidate Community legislation in co-operation with the other Institutions;
provide access to its archives.
The Commission has already taken or is in the process of taking the following measures:
wider consultations before presenting proposals, in particular publication of Green or White Papers on the topics listed in the 1993 legislative programme;
flagging in the legislative programme of upcoming proposals which would appear to be suitable for wide-ranging preliminary consultations;
introduction of a notification procedure, consisting of the publication in the Official Journal of a brief summary of any measure planned by the Commission, with the setting of a deadline by which interested parties may submit their comments;
publication of work programmes and legislative programmes in the Official Journal to publicize action planned by the Commission;
finalization of the work programme by October with a view to enhancing openness;
publication in the legislative programme of plans for the consolidation of Community legislation;
provision of easier public access to documents held by the Commission with effect from 1 January 1994;
improving knowledge of existing databases and their accessibility, including improving the existing relay network;
publication each week in the Official Journal of lists of documents on general topics; wider public access to documents on specific topics;
preparation of an interinstitutional yearbook giving details of each institution's organization chart;
faster publication of Commission documents in all Community languages;
adoption of a new information and communication policy occupying a larger place in Commission activities; enhanced co-ordination of information activities both inside and outside the Commission;
adoption of additional measures to facilitate the general public's understanding of Commission business, in particular by making available the necessary resources and equipment to provide a suitable response to requests from the media;
improvement in the treatment of telephone, mail and personal contacts between citizens and the Commission;
promotion of the establishment of self-regulation by special interest groups by asking them to draft a code of conduct and a directory;
creation by the Commission of a database on special interest groups as an instrument for use by the general public and by Community officials.
4.for reference:Interinstitutional Agreement on procedures for implementing the principle of subsidiarity.
5.for reference:Draft Decision of the European Parliament laying down the regulations and general conditions governing the performance of the Ombudsman's duties.
6.for reference:Arrangements for the proceedings of the Conciliation Committee under Article 189b.
7.The three Institutions will adopt all these texts in accordance with their internal procedures.
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The agreements established at the Interinstitutional Conference on 25 October 1993 are aimed at implementing the Treaty on European Union and at strengthening the democratic, transparent nature of the European Union. They may be added to or amended by common agreement at the initiative of any of the three Institutions.
Done at Luxembourg, 25 October 1993
For the European Parliament For the Council For the Commission
Draft INTERINSTITUTIONAL AGREEMENT
between the EuropeanParliament, the Council and the Commission
on procedures for implementing the
PRINCIPLE OF SUBSIDIARITY
THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION,
Having regard to the Treaty on European Union signed in Maastricht on 7 February 1992, and in particular Article B thereof,
Having regard to the Treaty establishing the European Community, and in particular Article 3b thereof, as resulting from the Treaty on European Union,
Having regard to the conclusions of the European Council, meeting in Edinburgh, concerning subsidiarity, transparency and democracy;
Have agreed on the following measures:
I.GENERAL PROVISIONS
1.The purpose of the procedures for implementing the principle of subsidiarity shall be to govern the manner in which the powers assigned to the Community institutions by the Treaties, in order to enable them to achieve the objectives laid down by the Treaties, are exercised.
2.Such procedures shall not call into question the acquis communautaire, the provisions of the Treaties concerning the powers conferred on the institutions or the institutional balance.
II.PROCEDURES
1.In exercising its right of initiative, the Commission shall take into account the principle of subsidiarity and show that it has been observed. The European Parliament and the Council shall do likewise, in exercising the powers conferred on them by Articles 138b and 152 respectively of the Treaty establishing the European Community.
2.The explanatory memorandum for any Commission proposal shall include a justification of the proposal under the principle of subsidiarity.
3.Any amendment which may be made to the Commission's text, whether by the European Parliament or the Council, must, if it entails more extensive or intensive intervention by the Community, be accompanied by a justification under the principle of subsidiarity and Article 3b.
4.The three institutions shall, under their internal procedures, regularly check that action envisaged complies with the provisions concerning subsidiarity as regards both the choice of legal instruments and the content of a proposal. Such checks must form an integral part of the substantive examination.
III.REVIEW OF COMPLIANCE WITH THE PRINCIPLE OF SUBSIDIARITY
1.Compliance with the principle of subsidiarity shall be reviewed under the normal Community process, in accordance with the rules laid down by the Treaties.
2.The Commission shall draw up an annual report for the European Parliament and the Council on compliance with the principle of subsidiarity. The European Parliament shall hold a public debate on that report, with the participation of the Council and the Commission.
IV.FINAL PROVISIONS
1.In the event of general difficulties concerning the application of this Agreement, the President of the European Parliament, the President of the Council or the President of the Commission may request that an interinstitutional conference be convened in order to overcome such difficulties or to supplement or amend this Agreement.
2.This Interinstitutional Agreement shall apply as from the entry into force of the Treaty on European Union.
DRAFT
DECISION OF THE EUROPEAN PARLIAMENT ON
THE REGULATIONS AND GENERAL CONDITIONS
GOVERNING THE PERFORMANCE OF THE OMBUDSMAN'S DUTIES
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, Article 20d(4) of the Treaty establishing the European Coal and Steel Community and 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;
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, unless there are duly substantiated grounds for secrecy, and without prejudice to the Ombudsman's obligation not to divulge such information; whereas the Member States' authorities are obliged to provide the Ombudsman with all necessary information save where such information is covered by rules or regulations on secrecy or by provisions preventing its being communicated; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations;
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 his attention in the course of his enquiries;
Whereas provision should be made for the possibility of co-operation 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 remuneration, 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, Article 20d(4) of the Treaty establishing the European Coal and Steel Community 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 aforementioned Treaties and the conditions laid down therein, the Ombudsman shall help to uncover maladministration 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 his 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 administrative 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 definitively.
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.
2. The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy.
They 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 speak on behalf of and in accordance with instructions from their administrations and shall continue to be bound by their duty of professional secrecy.
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 concerned to eliminate the instance of maladministration 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.
Article 4
1. The Ombudsman and his staff, to whom Article 214 of the Treaty establishing the European Community, Article 47(2) of the Treaty establishing the European Coal and Steel 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 also be required to treat in confidence 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, if appropriate, the Community institution 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.
Article 5
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 co-operate 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.
Article 6
1. The Ombudsman shall be appointed by the European Parliament after each election to the European Parliament for the duration of its mandate. 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 exercise of the highest judicial office in their country or have the acknowledged 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 his 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 citizens 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 behave with integrity 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 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.
3. Officials 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.
Article 12
The Ombudsman's budget shall be annexed to section I (Parliament) of the general budget of the European Communities.
Article 13
The seat of the Ombudsman shall be that of the European Parliament.
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 on the Treaty on European Union shall be appointed for the remainder of the parliamentary term.
Article 16
The European Parliament shall make provision in its budget for the staff and material facilities required by the first Ombudsman to perform his duties as soon as he is appointed.
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.
For the European Parliament,
(s.) Egon KLEPSCH
ARTICLE 189b
PHASE PRECEDING THE ADOPTION OF A COMMON POSITION BY THE COUNCIL
Current practice under the co-operation procedure generally, particularly in the most sensitive cases, involves talks between the Council Presidency, the Commission and the Chairmen or/and the rapporteurs of the relevant committees of the European Parliament. The institutions confirm that this practice should continue and could be developed under the procedure provided for in Article 189b of the Treaty establishing the European Community.
ARRANGEMENTS FOR THE PROCEEDINGS
OF THE CONCILIATION COMMITTEE UNDER ARTICLE 189b
1.The Committee shall be convened by the President of the Council with the agreement of the President of the European Parliament and with due regard to the provisions of the Treaty.
2.The Commission shall take part in the Conciliation Committee's proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council.
3.The Committee shall be chaired jointly by the President of the European Parliament and the President of the Council.
Committee meetings shall be chaired alternately by each co-Chairman.
The dates and the agendas for the Committee's meetings shall be set jointly by the co-Chairmen.
4.The Committee shall have available to it the Commission proposal, the Council's common position and the amendments approved by the European Parliament.
5.The co-Chairmen may draw up joint texts for submission to the Committee; they may submit reports to the Committee or propose to it that rapporteurs be appointed.
6.If the Committee agrees to a joint text which has not yet undergone legal/linguistic finalization, the draft text shall be submitted to the co-Chairmen for formal approval after such finalization.
7.The co-Chairmen shall approve the minutes of Committee meetings.
8.The outcome of votes and, where appropriate, explanations of vote, taken within each delegation on the Conciliation Committee, shall be forwarded to the Committee.
9.The co-Chairmen shall see to it that the joint texts approved by the Committee are forwarded forthwith to the European Parliament and to the Council.
10.The General Secretariat of the Council and the General Secretariat of the European Parliament shall act jointly as the Committee's Secretariat, in association with the General Secretariat of the Commission.
11.Joint texts shall be finalized by the Legal/linguistic Experts of the Council and of the European Parliament.
12.The Committee shall meet alternately at the premises of the European Parliament and the Council.
13.While abiding by the Treaty provisions regarding time limits, the Council shall, as far as possible, take into account the requirements of the European Parliament's schedule.
14.The above points may also apply to the Conciliation Committee when it operates on the basis of Article 189b(2), with due regard to the provisions of that Article of the Treaty.
Declaration of the European Parliament's delegation
concerning democracy, transparency and subsidiarity
The delegation of the European Parliament, while acknowledging that the Council, for the first time, has made some progress towards democracy and transparency, considers that the commitments undertaken by the Council represent merely a minimum first step towards a fully democratic and transparent European Union which the citizens demand.
Parliament reiterates its view that the adoption of all legislative texts by a public vote is a sine qua non of democracy and transparency in the European Union.
Parliament expects the Council to honour its own declarations as adopted at Birmingham and Edinburgh and, as a matter of urgency, to take the appropriate measures to ensure that its working methods reflect genuine transparency and democracy in the Union.
