‘Friendly solutions’ – new report notes pros and cons of informal resolution

Putting It Right? – How EU institutions respond to European Ombudsman (Nov 2014) is a new report focusing on cases in which the institutions complained about (European Union bodies, offices and agencies) have accepted the Ombud’s proposals and learned from past mistakes.

The report includes information on the range of possible outcomes of complaints considered by the Ombud and the responses by the body complained about. The range of outcomes, shown below, describes an escalation from consensual to the most critical and directive:

• cases settled by institution
• friendly solution proposed by the Ombud
• draft recommendations
• critical remark
• further remarks

The report notes that although friendly solutions can provide good outcomes for complainants, they are not effective at achieving systemic change:

“The main way the Ombudsman tries to achieve redress for the complainant is by proposing a ‘friendly solution’[6]. [footnote: 6 Such proposals are based on Article 3(5) of the Statute, which provides that “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.”] Such a proposal aims at a win-win outcome that satisfies both the institution and the complainant.

While friendly solution proposals may include a provisional finding of maladministration, the Ombudsman often considers it more constructive to avoid stating, even provisionally, that there could be maladministration. Rather, she identifies a problem or shortcoming in the institution’s behaviour that could be solved if the institution adopted the proposed friendly solution.

Where redress should be provided, it is best if the institution concerned takes the initiative, when it receives the complaint, to acknowledge the problem and offer suitable redress. This could take the form of compensation to the complainant or a sincere apology.

Whilst friendly solution proposals often achieve good outcomes for the complainant, they are rarely an effective instrument to achieve systemic change in the public interest.”

An institution can choose to reject a proposed friendly solution. In 2013, only 9 friendly solutions were accepted. There are, however, incentives to accept – the next stage of a complaint is a draft recommendation, and these are published:

“If the institution rejects a friendly solution proposal without good reason, or such a proposal is unlikely to be effective, the next step is usually what Article 3(6) of the Statute terms a ‘draft recommendation’. It is better for all concerned if the institution accepts a friendly solution than if it first rejects a friendly solution proposal and then accepts a draft recommendation. Draft recommendations addressed to the institutions are, simultaneously, published on the Ombudsman’s website. The Ombudsman may also choose to draw public attention to the case and to her efforts to obtain a solution, by issuing a press release at this stage on the maladministration identified. With a view to avoiding such publicity, institutions should seriously consider the added benefit, for their own work and for the image of the Union more generally, of accepting a friendly solution proposal rather than waiting for the Ombudsman to make a draft recommendation.”

The next stage for complaints which are investigated but where no friendly solution or recommendations are accepted is a ‘critical remark’. The report notes that “a critical remark does not constitute redress for the complainant. In many cases, a better outcome would have been for the institution concerned to settle the matter itself by acknowledging the maladministration and offering suitable redress.”

But the report also notes that complainants are not always right, “and the institution concerned is entitled to defend its position. About half of the cases that are not settled by the institution at an early stage eventually give rise to a finding of no maladministration.”

The Annex to the report gives examples of complaints closed by friendly solutions that were accepted by the EU institution.