P. NIKIFOROS DIAMANDOUROS
Dear Mr McNeill,
I am writing in reply to your e-mail of 2 July 2003, in which you invited me to reconsider my decision of 26 June 2003 not to open an inquiry concerning the complaint that you had, on behalf of the European Committee on Romani Emancipation, submitted to me.
Upon having received your message, I have decided to carry out a thorough re-examination of the question as to whether I could or should open an inquiry in this case.
You correctly point out that Article 195 of the EC Treaty grants a margin of discretion to the European Ombudsman as to whether or not he should open an inquiry. I agree that this dscretion has to be exercised properly and with due regard to all circumstances of a given case.
However, the present complaint concerns the role of the European Commission in relation to the accession of new member states. Article 49 of the Treaty on European Union (TEU) provides that the Council shall after having received the assent of the European Parliament, act unanimously on any application to join the EU "after consulting the Commission".
My re-examination has led me to the conclusion that under the Treaties as they presently stand, the European Ombudsman has no power to inquire into the activity of the Commission under Article 49 TEU. A more detailed account of the reasons for this conclusion is enclosed.
I am sorry to have to inform you, therefore, that I am not entitled to deal with your complaint.
(signed P.Nikiforos Diamandouros)
P. Nikiforos DIAMANDOUROS
1 avenue du President Robert Schuman - F 6700 STRASBOURG Cedex B.P. 403
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Article 195 of the EC Treaty empowers the European Ombudsman to receive complaints concerning instances of maladministration in the activities of Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instances acting in their judicial role. This provision applies to the activity of the Community institutuions and bodies under the EC Treaty. The Ombudsman's mandate thus does not cover the activity of the Community institutuions and bodies under the Treaty of Europoean Union (TEU), unless this treaty provides for such competence. This is the case in so far as Title VI of the TEU (Provisions on police and judicial cooperation in criminal matters) is concerned, given that Article 41 TEU stipulates that article 195 of the EC Treaty shall be applicable in this area. A competence of the European Ombudsman is clearly excluded in so far as Title V (Provisions on a common foreign and security policy) is concerned (see Article 28 TEU), according to which several provisions of the EC Treaty - but not Article 195 - shall apply to this field. Article 49 TEU belongs to Title VIII (Final provisions) of the TEU. This title contains a provision (Article 46) according to which the provisions of the EC Treaty concerning the powers of the Court of Justics shall apply in this area. There is however no provision stipulating that Article 195 of the EC Treaty shall also be applicable here. It follows that the European Ombudsman has no mandate to examine the activity of Community institutions and bodies carried out on the basis of the provisions of this title, including the activity of the Commission under Article 49 TEU.