The European Ombudsman ("EO") cannot directly overturn European Commission (or other institution's) decisions but its role and potential impact should not be overlooked, as the current O2 investigation demonstrates.
This article considers why citizens are making record numbers of complaints, and what they could achieve by doing so.
What is the European Ombudsman?
The European Ombudsman ("EO") investigates complaints about maladministration by any of the institutions and bodies of the EC. The most common complaints relate to unnecessary delay and refusal of information. The EO aims to process complaints within strict timeframes and for the complainant this could mean resolution of a grievance in a shorter timescale than pursuit through courts, as well as the obvious financial benefits of avoiding litigation.
What are his/her powers?
The EO investigates alleged cases of maladministration by the European institutions. The EO cannot investigate complaints about national, regional or local authorities, or an issue being looked at by national courts. Such cases are referred back to the appropriate national ombudsman. The EO should be seen as part of a wider family of ombudsmen and as such there is a close relationship between the national ombudsmen of Member States and the EO.
When the EO informs the relevant institution that he has received a complaint, the institution has an opportunity to resolve the problem. The person making the complaint does not necessarily need to be directly affected by the issue complained of. The EO bases his assessment of the situation on a number of factors such as the European Charter of Fundamental Rights and codes of good administration.
If maladministration is found and the case is not settled in the course of the inquiry, the EO tries to broker a solution to the complainant's satisfaction. If conciliation fails, the EO can make a draft recommendation to the institution, calling on it to take the necessary steps to put the maladministration right. If the institution does not accept his recommendation, he can make a special report to the European Parliament, as well as making a "critical remark" to the Institution itself. The EO has no powers to order an institution to change a decision, nor can he grant redress by awarding compensation or annulling a decision. However, the results that can be achieved through the EO's softer, more co-operative approach are not to be underestimated.
When is the ombudsman relevant in competition cases?
Of particular interest for competition lawyers is the investigation launched following a complaint by the telecommunications operator O2. The complaint follows a four-year investigation by the Commission into the charges levied by telecommunications companies in respect of their roaming charges (for using devices in other network areas). The Commission sent a statement to O2 in July 2004, alleging that it had been abusing a dominant market position by charging excessive fees for roaming services.
O2 have now responded with allegations of maladministration by the Commission in failing to grant O2 proper defence right. The complaints include not allowing O2 enough time to respond to allegations of wrongdoing, an infringement of their right to a supplemental statement of objections, and of the right to be properly heard. It was also alleged that the Commission had failed to allow O2 access to requested documents.
The timing of O2's complaint is significant as the Commission is in the advanced stages of considering legislation to control mobile phone charges throughout the EU. The proposals involve capping the amount of money mobile phone operators can charge their customers for roaming calls, limiting the retail mark-up to 30%, which could cost operators around €4bn in revenue.
This example illustrates how the EO can play a role in large value competition questions. The real challenge is to ensure that the ombudsman's findings will lead to better case administration. Let's hope that the ombudsman takes up that challenge.