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The Ombudsman as an Institution of European Administrative Law

Dr. Julia Haas, Attorney-at-law (Rechtsanwältin), Hamburg (Germany)

The ombudsman is presumably one of the most important Scandinavian contributions to worldwide constitutional development. Its origins can be traced back to the Swedish institution of the Justitieombudsman which was introduced in the Swedish constitution of 1809. The original Swedish idea of an “ombudsman” (meaning “representative” or “commissioner”) is that of an independent public official appointed by the legislative branch of government in order to control the administration on the basis of complaints by individuals or on its own initiative.

Apart from Finland, where an ombudsman was introduced in 1919 in accordance with the Swedish prototype, the ombudsman idea remained largely unnoticed outside of Sweden for almost 150 years. But the implementation and further development of the ombudsman in Denmark in the middle of the 1950s triggered the spread of the institution worldwide. Today, the ombudsman is represented in over 150 national and regional jurisdictions worldwide in over 128 countries on all continents and in all different kinds of legal cultures. The ombudsman has been in the focus of international legal research for many years now with numerous studies covering different national and regional institutions as well as various aspects and functions of the ombudsman.

In my recent work, I have focused on the ombudsman’s classical role in administrative supervision and have developed the legal concept of a control-oriented model ombudsman.

From a European point of view, one of the most striking recent developments seems to be the ombudsman’s evolution into a core institution of the multi-layered system of European Administrative Law: At the national level, nearly all European Union member states have introduced an ombudsman (apart from Germany and Italy which only have regional ombudsmen in some federal states or regions). At the supranational level of European Union Law, there exists a European Ombudsman since 1995 forming the prototype of a fully-fledged classical ombudsman at the international plane to foster extrajudicial redress and control regarding the Union institutions and bodies. Finally, the ombudsman idea also affects the field of indirect enforcement of EU Law and cooperation structures when national ombudsman institutions in the member states and the European Ombudsman interact in an informal “European Network of Ombudsmen” to supervise national authorities when enforcing EU Law or cooperation structures between national and supranational authorities.

In contrast to that, it seems striking that the Ombudsman is often perceived as an institution of minor importance, if not sometimes still as an “unknown creature” in Germany. This may be due to the fact that in German legal research the ombudsman idea is – apart from some older, rather enthusiastic ombudsman studies dating back to the 1960s and 1970s – faced with skepticism or ignorance. Probably, this attitude is to a great extent rooted in the rejection of the ombudsman idea as superfluous in the German system of administrative control by courts and petition committees, which is perceived as “complete” and “comprehensive” by many German scholars who often also transfer this view to the supranational level of European Union Law when assessing the European Ombudsman.

Against this background, it seemed challenging to write a comparative ombudsman study which examines the legal design, status and mode of operation of European ombudsman institutions and which – in contrast to some current legal research with its focus on the ombudsman’s human rights protection and mediation functions – tries to outline the ombudsman’s potential for administrative supervision in the field of European Administrative Law. Such an attempt has to deal with the current terminological, functional and legal diversity of the ombudsman idea in Europe, since the triumphal march of the ombudsman worldwide with its implementation in different legal systems, legal fields and factual contexts has led to a great number of various forms of the ombudsman which deviate from the classical Scandinavian prototypes in Sweden and Denmark.

Even though this variety of ombudsman institutions could be regarded as the result of meaningful adaptations of the original idea to different factual and legal environments – thereby giving the proliferation of the ombudsman idea an even further boost – the omnipresence of the ombudsman in various contexts fosters misinterpretations of its status and its operation in the respective legal, constitutional and administrative system: The original meaning of the legal term “ombudsman” has blurred and interpretations range between the poles of its elevation to a “messianic saviour” (H. Matthes) with an omnipotent competence to provide solutions and its degradation to a mere “ombudsmouse” (D. C. Rowat) with no significant influence at all.

Therefore, the first part of my study addresses the terminological diversity of the institution of the ombudsman by defining the Ombudsman – according to its Scandinavian origins in Swedish and Danish law – as an independent public law institution which conducts investigations on the basis of complaints of individuals or on its own motion to control whether the administrative authorities acted legally and properly.

The second part describes the legal design of ombudsman institutions in the EU member states and the European Ombudsman at the supranational level and their respective interaction in a “European Network of Ombudsmen”.

In the third part, the current functions of European ombudsman institutions are analyzed and, on the basis of the comparative analysis, the legal design of a control-oriented model ombudsman is developed, which is supposed to act mainly according to its dominating administrative justice function to enforce legality and the principles of good administration by means of hard investigative powers, but soft decisions making powers, thereby relying on the power of persuasion and on public accountability by issuing reports, criticism and recommendations.

Finally, the study concludes with a summary of the main findings and some legal policy proposals for the legal systems of the European member states as well as for European Union Law.

The full study is available here, in German. A detailed English summary of the study can be found on pages 711-28.

Suggested Citation: Julia Haas, The Ombudsman as an Institution of European Administrative Law, Int’l J. Const. L. Blog, Mar. 27, 2013, available at: http://www.iconnectblog.com/2013/03/the-ombudsman-as-an-institution-of-european-administrative-law.

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Published on March 27, 2013
Author:          Filed under: Analysis, Younger Comparativists; New Scholarship
 

2 Responses

  1. Ran Hirschl

    Thanks, Julia. Great post. Made me think again about the fuzzy boundaries between constitutional law, what may be termed “state law” or the laws of government institutions, and the broader category of public law. Many public entities have what is sometimes termed “controller”, an institutional guardian that may be more effective than complex litigation processes and less politically contested than judicial activism. Either way, I’m curious: In your research about the ombudsman institution, have you encountered some political trends that may explain why the institution is established or empowered, when is this more likely to occur, say akin to judicial empowerment or the spread of constitutionalism and judicial review more generally? Or is it driven by diffusion and emulation, or by a global convergence to certain norms of clean, transparent government?

  2. Julia Haas

    Many thanks, Ran, for your interesting observations. I have encountered nearly all of the (political) trends raised in your questions in my research about the ombudsman institution:

    First of all, I have encountered that the ombudsman is to some extent linked to the discussion on a further expansion of judicial review when it is inter alia assessed whether the ombudsman institution could be a useful concept to substitute judicial review by courts – at least in some respect. It is suggested for example that ombudsmen could handle small claims which could relieve the court system and provide aggrieved individuals with an easy accessible and cost effective means of redress. But also from a more control-oriented perspective, the ombudsman can function as a meaningful supplement (but not necessarily complete substitue) of judicial review when for example reviewing procedural errors or other administrative misconduct which is – at least in some jurisdictions – not reviewed extensively in court proceedings.

    Moerover, as you suggested, I would agree that the spread of the ombudsman institution is driven by politicals trends of emulation as well. The ombudsman idea has gained wide acceptance and has therefore been introduced in many jurisdictions worldwide also because of its sucessful operation in other jurisdictions and its good reputation as a guardian of the rule of law and good administration. For example, ombudsmen have been introduced in Eastern Europe after the fall of the Iron Curtain as a distinct (political) statement to foster constitutionalism and human rights.

    Finally, I would also consider the spread of the ombudsman institution as the result of a trend towards a global convergence to certain values of transparency, good government and principles of good administration. By reviewing not only the legality of administrative behaviour, ombudsmen have contributed to the development of prinicples of good administration, e. g. at the level of European Union Law, thereby producing important precedents on administrative procedures, organization of administrative authorities and citizen-friendly behaviour.

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