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February 2011

 File n°12 

The Ombudsman of the Republic

 

 

 

 

 

 

    Key Points

    The Ombudsman of the Republic is a personalized independent authority at the service of citizens, appointed by decree in the Council of Ministers for a non-renewable term of six years.

    He is responsible for settling, outside of court, individual disputes between citizens (natural persons or legal entities) and a state administration, a territorial unit, a public establishment or any other body with a public service mission. For individual arbitration, matters may be referred directly to his representatives but referral to him must be made, in principle, through the offices of a parliamentarian.

    He may, in addition, make proposals to reform the incorrect running of a public service or inequitable situations brought about by the implementation of a statutory or regulatory law. In such cases, direct referral is possible and the Ombudsman of the Republic also has the possibility of auto-referral.

    In his two fields of action, the Ombudsman of the Republic cannot impose his solutions and must thus “persuade” the bodies concerned of the merits of his proposals. He nonetheless has broad powers of investigation in a limited number of cases as well as powers of enforcement and even of sanction. He may require his reform proposals to be examined by an interministerial committee.

    The Ombudsman of the Republic is assisted by public officials who are at his disposal and he has developed a national network of unpaid representatives who deal directly with disputes concerning local public administrations and services.

    Article 41 of the Constitutional Act of July 23, 2008 introduced the notion of a Defender of Rights, who is to replace the Ombudsman of the Republic and other authorities whose job it is to mediate and monitor the respect of people’s rights.

 

The institution of the Ombudsman (which later took the name of the Ombudsman of the Republic) is based on the “Ombudsman” of various northern European countries. It was set up by the law of January 3, 1973.

I. – STATUS

The Ombudsman of the Republic is a personalized “independent authority” appointed for six years by decree by the Council of Ministers. So as to guarantee his independence, his term is not renewable and he is irremovable. He may only be replaced before the end of his term of office if he is unable to continue according to certain conditions laid down by decree.

Similarly, the 1973 law states that he may receive no instructions from any other authority and grants him an immunity similar to that given to parliamentarians concerning the opinions that he expresses or the acts he carries out in the exercise of his office.

The Ombudsman of the Republic presents an annual report on his activities to the President of the Republic and to Parliament. This report is published and is the basis of a presentation which he makes to each of the assemblies.

II. – TASKS

The Ombudsman of the Republic has two main tasks:

- He is responsible for settling, outside of court, any disputes which occur between citizens, on the one hand, and administrations or other bodies with a public service mission, on the other hand;

- When it appears to him that a body with a public service mission has not worked in keeping with this mission or that the implementation of statutory or regulatory provisions has led to inequitable situations, he is authorized to propose a reform aimed at rectifying the problem or the inequity.

III. – SCOPE OF POWERS

The Ombudsman of the Republic will intervene through individual arbitration when there is an unresolved dispute with the administration. “Dispute” refers to a concrete problem met personally by a natural person or a legal entity, whatever his nationality or place of abode, in his relations with a French body carrying out a public service mission.

The law also states that the Ombudsman of the Republic may not intervene in proceedings which are already being heard by a court nor may he re-examine a court ruling.

IV. – REFERRAL

Before referral may be made to the Ombudsman of the Republic on an individual dispute, a first step must have been made to the public body concerned to request an explanation of the decision taken or to contest its merits and the disagreement must still exist.

Referral is not, in principle, made directly to the Ombudsman of the Republic. The person concerned must go through an M.P. or Senator of his choice (the parliamentarian in question does not necessarily have to represent the place of abode of the person concerned nor the place where the dispute took place).

Nonetheless, the representatives of the Ombudsman of the Republic (to whom referral can be made directly or through a parliamentarian) are likely to solve a large number of problems at their level and, in particular, those concerning decentralized state services or local levels of public services. When a representative cannot, himself, resolve a dispute, he helps the claimant to draw up a file and directs him towards a parliamentarian who can refer the matter to the Ombudsman of the Republic.

Referral to the Ombudsman of the Republic may also be made by the European Ombudsman or by one of his foreign counterparts. Upon the request of a standing committee, the President of the National Assembly or of the Senate may transmit to the Ombudsman of the Republic, a petition addressed to his assembly.

In addition, the rule concerning the use of the parliamentary avenue has not been applicable to requests for reform proposals since the entry into force of the law of April 12, 2000. Such requests, which may come from a citizen, a representative or a parliamentarian, are directly transmitted to the Ombudsman of the Republic, who, in this field, also has been given the right to auto-referral by the aforementioned law.

V. – MECHANISMS FOR ACTION

As regards the resolution of individual disputes, the Ombudsman of the Republic has no power to impose a solution on the administrations and public services involved in the dispute referred to him. He thus uses his powers of persuasion by setting up a dialogue with the public service concerned. He will set out recommendations aimed at solving the problem.

When he feels it necessary, the Ombudsman of the Republic may set out an equitable recommendation which consists in requesting the body concerned, to depart, in this particular case, from the rules in force in order to solve the problem. It is in such circumstances understood that the proposed solution will not create an irrevocable precedent.

To facilitate the exercise of his task, the law provides the Ombudsman of the Republic with certain powers and in particular, powers of investigation and injunction to be applied to the administrations and bodies concerned.

In addition, in the case of reform proposals made by the Ombudsman of the Republic, it must be underlined that when such proposals consistently come up against difficulties or when they may interest several ministerial departments, the Minister in Charge of State Reform may call an interministerial meeting based on an agenda laid down by the Ombudsman of the Republic.

VI. – MEANS

At the seat of the institution in Paris, the Ombudsman of the Republic has a staff of around one hundred.

In recent times, the Ombudsman of the Republic has also developed his national network made up today of close to 300 representatives.

VII. – THE REPLACEMENT OF THE OMBUDSMAN OF THE REPUBLIC BY THE DEFENDER OF RIGHTS

Article 41 of the Constitutional Act of July 23, 2008 introduced the title XI bis into the Constitution. It is entitled “The Defender of Rights” and has a single article: 71-1.

The mission of this new authority is to ensure the due respect of rights and freedoms by state administrations and by all bodies carrying out a public service mission or by those that the Institutional Act decides fall within his remit. This last detail opens up the possibility of broadening the powers of the Defender of Rights in comparison with those of the Ombudsman of the Republic.

It is set down that the Defender of Rights may act without referral or that referral may be made by every person who considers his rights to have been infringed by the operation of a public service or of a body within the field of competence of the Defender. This formulation should permit direct referral rather than the current parliamentary filter which applies to the Ombudsman of the Republic.

The other powers and operating mechanisms for the Defender of Rights will be determined by an Institutional Act.

However, the rules concerning the appointment of the Defender, the length of his term, the incompatibilities which are applicable as well as the conditions in which he must report on his activities, which are all set down in article 71-1, are identical to those for the Ombudsman of the Republic, with the exception of the fact that, for his appointment, the new procedure requiring the opinion of the relevant parliamentary standing committees, is to be applied.