Bicycle route to a reformed Europe

About the author
Jacob Söderman, former Ombudsman and Minister of Justice in Finland, was elected European Ombudsman by the European Parliament in 1995.
Peddling Europe

As you may know, the seat of the European Ombudsman – like the European Parliament – is in Strasbourg. The beauty of the surrounding Alsace countryside has surely struck all those of you who have spent time in Strasbourg.

On a sunny summer weekend morning, I usually make a long bike tour into the valley. When I wake up, I check the direction of the wind by observing the French flag flying over the Prefecture. Often I start against the wind, because it is easier to get home with the wind in your back when you are tired. All bikers know that the wind may change and that you may have to bike against the wind for the whole journey. But still it is worth it.

The present European Commission has ambitious plans for reforming the running of the Union – plans which affect its institutions, its citizens and the Commission itself (it will present a White Paper later this year). The Commission has laid many of these plans before the public in order to provoke debate. And already, we can begin to form some idea of what European citizens expect from these reforms.

It is my role to speak up on behalf of European citizens. I have worked for over five and a half years as European Ombudsman and was previously parliamentary ombudsman in Finland for six years. So over the last eleven years, I have become something of an expert when it comes to citizens’ grievances in relation to public administrations.

Reforming the public administration reminds me of biking. To meet the challenges of our time, you have to be ready for constant reform. As with biking, you must keep pedaling. Otherwise, the bike will stop and fall. It is important to take the right direction and to be ready to face the wind.

Beyond Kafka’s castle?

When biking, one can observe old castles on the slopes and peaks of the Vosges mountain chain. Most of those I see during my biking trips are no longer used. They still look down on the valley as monuments of the birth of the public sector. At the time, a person would place a castle and soldiers upon the hill and would tell the farmers down in the villages that they would protect the valley and its citizens in return for food and wine being brought to the castle. This was the model throughout Europe.

Franz Kafka, a famous writer from a country now applying for EU membership, wrote a marvellous book entitled The Castle. In it he portrayed the castle as representing something dark and threatening, mysterious and villainous. Another famous writer, Nikolai Gogol, in his famous play, The Government Inspector, describes the unease that takes over a village expecting a state auditor to arrive to conduct an inspection. When a foreigner comes to the village’s only inn, the locals observe him carefully but discreetly. In the end they conclude that he does not shout and curse at people, so he cannot be a state official.

Europe and its citizens have come a long way since the time of Kafka and Gogol. They have lived through war and peace, economic growth and prosperity, and economic disaster and hunger. However, there has generally been an aim throughout to create a society based on democracy, the rule of law and respect for human rights.

Gradually, it was also accepted that the public sector should not act only as a repressive instrument, but should serve its citizens by providing them with schools and universities, social care and hospitals, environmental protection and equal opportunities. Indeed the public sector in Europe reached a peak with the aim to provide a welfare state that would look after its citizens from the cradle to the grave.

Liberalism and its challenges

Today, the very future of the public sector is under consideration in every member state of the European Union. The wind of neo-liberalism first crossed the Atlantic at the end of the 1970s and gave birth to Thatcherism in the United Kingdom. Even if most European countries have not gone as far as to translate such beliefs into policy, all have moved a certain way towards a free market economic policy and a reduction in the scope of the public sector.

In the 1960s, socialists believed that almost everything that citizens needed could be provided by the public sector. The state administration became bloated as a result. Today, capitalists maintain that the free market can provide all services to citizens far more effectively. The campaign for privatisation to let business take over large chunks of the public service is strong and has many supporters. “Let business take over, just contract it out”, they argue.

Why am I telling you this? What has this to do with citizens’ rights? The answer is simple. I want to underline that the greatest difference between European culture and the American way is not the great number of beautiful languages that we use in Europe, nor even the fact that we do not accept capital punishment. It is the fact that we still believe in the need for a good public service to create and maintain a social and humane society, where all citizens have equal opportunities.

I also want to stress that it is the public sector that in large part gives the member states and the EU itself their face and image. When the Maastricht Treaty established that the EU has citizens and that they have rights in relation to EU institutions and bodies, it went a long way towards giving the EU a real identity.

I believe in the free market and in free enterprise. But one thing must be understood. The free market does not provide citizens with their fundamental rights. It will not, by itself, care for the ill or safeguard the countryside. It is not there to secure equal opportunities in education for all children, so that Europe can maintain its high level of well-trained human resources.

For the public sector the future will necessarily bring a long period of transformation and a struggle for survival. This period has started. The public sector must modernise, or face stagnation and ruin. Reform is essential, but the type of reform needed is heavily debated. I would invest in the types of reform that will give the public sector the support and approval of the citizens that it is there to serve. To me, that is the only lifeline available. The public sector must not go the way of the old castles of Europe.

Reforming the castle

Nevertheless, EU citizens have a negative view of the EU institutions. Why? Do they still see it as Kafka’s Castle? And what, if anything, can be done about it? The Commission’s President, Romano Prodi, has declared that he sees it as his mandate to promote new forms of European governance. In his speech on 15 February last year, President Prodi told the European Parliament that “the EU needs strong, efficient and accountable institutions” which “operate in a transparent and accountable way and enjoy the full confidence of the citizens.” He expressed a hope for a “no-holds-barred debate on this question with all the players involved”.

I would like to say that EU institutions and bodies have proved to be much better than their reputation in the member states. Nevertheless, people suspect that the Commission is trying to reform the castle from the inside and that it is simply not enough to make in-house changes. The castle must be opened up to the public. The EU administration must open up and renew its relations with the citizens.

As European Ombudsman, I can see from my multiple contacts with them that this could indeed increase the support EU citizens give to the EU. And it could remove many of the problems that cause their grievances.

One of the greatest achievements of the French Presidency was the Charter of Fundamental Rights proclaimed at Nice in December 2000. This is because it was made for the citizens and will change their status within the Union. The Nice Charter is the first in the world to include a right to good administration (Article 41) as a fundamental right in a human rights declaration. For the citizen, it is a giant step forward from the Maastricht Treaty.

I gladly support President Prodi’s ambition to improve European governance, if it meets the citizens’ need for a change. What is good governance and how can we achieve it? For me, it requires that the Charter of Nice be made a living reality for every European citizen. I believe this will require at least three steps:

Step one – increase transparency

The easiest way to promote honest administration, which is what European citizens across the continent demand, is to ensure the greatest possible transparency in government. Recently, the debate about transparency has concentrated almost exclusively on the issue of public access to documents. This is important, but it is not the only aspect. It upsets me that the debate on public access to documents has begun to sound like one of opposing religious dogmas. This does nothing to help the cause.

The key issue is that citizens should know what the institutions are doing and why. I fully accept that there are fields in which public administration has to work in a confidential manner, but these are well known and listed in many working laws on the subject throughout Europe. All that is needed now, for the new rules on openness to work, is enough political will and less disputatiousness.

Step two – establish good rules for administrative behaviour

There is one group in the European Union that has many obligations and few written rights: that is the European citizens. In the member states during the last few decades, many laws on good administrative behaviour have been enacted to the benefit of the citizens. The fact that such laws have been enacted across the European Union, from Portugal to Sweden, dispels the idea that the north has a different approach to good administration than the south. However, it has to be said that the Codes of Good Administrative Behaviour adopted last year by the European Commission and the European Parliament, although positive steps forward, fell short of the requirements in the Nice Charter. The Council has yet to establish any Code at all.

I believe that the European Union needs a law on good administrative behaviour. Such a law would mean that the citizens would know what their rights are in relation to the administration and the officials would know what is expected from them.

Step three – ensure respect for the rule of law

From those complaints I receive that are admissible, I am able to see that Community law is still not well respected in the Member States. This is perhaps because it is not well known or understood. For big business it mostly works well, but for ordinary citizens it does not deliver what it promises. It is difficult for me to understand how citizens can have confidence in the EU if EU law is not respected and followed in the member states.

Furthermore, court proceedings that involve Community law are marathons. The results cannot be expected in less than three years and the costs are simply unaffordable for ordinary citizens. Citizens can petition the European Parliament, but even when the Commission acts as a result of a petition, this takes time. And the procedure that the Commission follows, as the Guardian of the Treaty, is non-transparent. It has been the target for much discontent and many complaints from citizens.

The European Commission seems to be doubtful about the idea that it should deal with citizens’ complaints regarding Community law. It has started to remove the EuroJus service, by which citizens were able to receive legal advice regarding Community legal matters from representatives of the Commission in the Member States. Instead of facing up to its responsibilities, the Commission seems to be planning to delegate this to the Member States. That is say, to those who are already alleged to be applying Community law quite poorly. For my part, I have tried to promote greater knowledge amongst Ombudsmen and Petitions Committees in the member states, by setting up a Liaison Network to enable relevant information and knowledge of Community law to be shared.

It might be necessary in the future to establish some sort of an independent Chancellor of Justice to take over the obligations as Guardian of the Treaty. Such a Chancellor could also take over the supervision of the Union’s Anti-Fraud Office (OLAF), thus securing its independence from undue interference.

Coda: now it is up to you

The right way to run the European Union (and public administration in general), is to reach out to the European citizens, to work for them and to serve them in an open, dedicated and honest way. Once the image of Gogol’s state official becomes meaningless to European citizens, we will know that the job is being done properly. This is surely the only way to win people’s confidence and support for the challenges of the future.

There is one thing more to add. To my mind, all European citizens are players involved in this debate. You have now been presented with the Commission’s plans. So now it is up to you to act.

Based on a speech given in March 2001.