'Priceless legacy' of O'Reilly as EU role nears end

European commissioners, MEPs and the leading lights of civil society this week hailed the legacy of outgoing European Ombudsman Emily O'Reilly at a farewell celebration in Brussels.

Europe Editor Tony Connelly assesses the record of the former journalist and Irish ombudsman over two turbulent and controversial terms of office.

When Emily O'Reilly took up her first post as European Ombudsman in Strasbourg in 2013 she encountered a small, male-dominated office where much of the work was still done on paper.

"The management team was virtually completely male," she recalls. "You had a secretary general who was male, two directors who were both male, eight heads of unit, seven of whom were men. So, quite old fashioned in that way."

O'Reilly also found the office somewhat timid. She was the third European Ombudsman; her predecessors, a Finn who held the office from 1995 and a Greek, in charge from 2003 - who were a former parliamentary ombudsman and an academic respectively - did not have the crusading zeal which has characterised her turbulent and high-profile 11 year term, which is drawing to a close.

This week, a farewell reception was held in Brussels with the EU’s chief Brexit negotiator Maros Sefcovic and fellow commission vice-president Vera Jerouva doing the honours.

"Her legacy is priceless," high-profile Dutch MEP Sophie In 't Veld declared on X. "She turned the EU Ombudsman [office] into a formidable democratic watchdog and set new standards for transparency and ethics."

O’Reilly certainly transformed the role.

When she brought a consultant over who’d helped modernise her office as Irish ombudsman he was told by staff in Strasbourg that the European Ombudsman was for people who couldn’t afford a lawyer (one MEP described the office as "decorative").

She steadily dismantled the Strasbourg set up, letting go some of the local staff, and shifted operations to a new office in Brussels, expanding staffing levels, modernising systems and hiring more women (three of her five-strong cabinet are women, and there are roughly 60 female staff out of a total workforce of 90 officials).

Whereas her two predecessors were low profile, O’Reilly was instantly a more prominent media performer, getting to know the huge Brussels press corp and impressing all-comers with her presentational skills and ability to render EU policy-making seem vital and understanding.

"I've always, whether in journalism or as Irish ombudsman, been ambitious to deliver change - dynamic change if I can," she tells RTÉ News.

"[The office] is given a huge role in the EU treaties. You are the watchdog of the entire administration. That’s huge, or it's tiny, if you choose it to be tiny. But I chose to see its bigger role."

That bigger role, O’Reilly realised, did not require any changes to the EU treaty. Her team cut in half the time required to complete an investigation, introduced more collaborative ways of working, and set up a biennial system to reward the work of EU staff.

She took increasingly high-profile actions against the European Commission on ever-more sensitive topics - the handling of coronavirus vaccines, migration, defence, "revolving door" allegations - generally making such a nuisance of herself that the European People’s Party (EPP), the biggest and most influential political group at EU level (and the political home of President Ursula von der Leyen), actively tried to block her second mandate in 2019 (Fine Gael MEPs within the EPP enthusiastically supported her).

"You are the watchdog of the entire administration. That's huge, or it's tiny, if you choose it to be tiny. But I chose to see its bigger role"

She instinctively saw within the EU legislative process issues that consumers might want to be alerted to.

Her first big investigation, in 2013, was into the impact on food safety of the (still frozen) EU-US trade agreement known as TTIP.

In the final months of her mandate she has relentlessly sought answers over how EU border agency Frontex handled the Adriana sea disaster, when 600 migrants drowned off the Greek coast last year.

The TTIP investigation boosted the profile of the office among businesses, civil society and consumers, while the gruelling experience of the financial crisis and the subsequent EU-IMF bailouts (including in Ireland) opened up a whole new appetite by EU citizens for answers. These sharpened O’Reilly’s own receptors.

"The crisis management of the Troika - of the European Commission, the IMF and the ECB - taught me what happens when the relationship between people and administrations at national and European level becomes distorted, when the administration loses sight of who and what it’s trying to protect," she told assembled MEPs and guests this week.

"Certain measures imposed were cruel, destroying livelihoods, destroying literal lives, when other ways could have been found to deal more humanely with the crisis. I vividly recall the sight of people in wheelchairs, chaining themselves to the gates of the parliament building in Dublin, pleading to have their care assistants restored to them to allow them to live as others do."

O’Reilly launched way more "own initiative" procedures than her predecessors.

She accused former commission president José Manuel Barroso of maladministration after he took a job with Goldman Sachs (Barroso argued vociferously that two other independent investigations had cleared him of any wrongdoing); she issued a scathing report over Jean-Claude Juncker’s former chief of staff Martin Selmayr, accusing him of breaching "EU law, in letter [and] spirit" after he was elevated to become commission secretary general (the commission continues to dispute the finding).

O'Reilly sees her role as a powerful one that requires a robust sense of accountability, even if her decisions are non-binding.

"It was probably the first job in my life that I was absolutely certain I could do," she says. "I had a very, very clear plan from the start, and that was to ensure ability, impact and relevance."

She wanted to make sure that the work was not overlapping that of other actors such as the European Parliament, the Court of Auditors and OLAF, the EU’s fraud investigator.

The European Ombudsman is there to hold the EU institutions and agencies to account and to ensure proper administration, but the European public can only appeal to O’Reilly’s team if their initial requests to the institutions for documents or recourse have been turned down.

Indeed, getting documents released to citizens or journalists has been the most gruelling aspect of her two terms, one which has seen her lock horns on numerous occasions with the European Commission.

In March 2023, O’Reilly demanded that the commission urgently deal with what she called a systemic delay in the release of documents, accusing it of multiple breaches of the mandatory time limit within which they should be handed over.

Her office found that where citizens had sought a review of a commission refusal to release documents, deadlines for answers were missed 85% of the time (O’Reilly sent a special request to the European Parliament in May last year - only the second time in 11 years - to seek its support in speeding up the process).

The long wrangling between O’Reilly and the commission either reflects a more controlling tendency under the Von der Leyen commission, or reflects a disparity in attitudes towards freedom of information across 27 member states (neither Germany nor Italy have an ombudsman office - in the former, ministries are loathe to release documents - whereas in Nordic countries ombudsmen are powerful and esteemed figures).

"There are different political and administrative cultures," says one former staffer. "Transparency and ethics are not popular in many parts of Europe and in many parts of the EU institutions. Access to documents is a legal process, and the commission will take a very legal view and say, legally, they do not have to release documents. They would resent some of the recommendations of the ombudsman on access to documents."

"Certain (bailout) measures imposed were cruel, destroying livelihoods, destroying literal lives, when other ways could have been found to deal more humanely with the crisis"

Public access to information - enshrined as a fundamental European right - comes under Regulation 1049, but there are exceptions.

The ECB, European Court of Justice, and European Investment Bank are not covered, while requests for documents can be declined to protect public security, defence and international relations, decision-making, individual privacy, commercial interests, investigations, court proceedings, and relations with third parties.

O’Reilly believes that the commission has increasingly been setting aside its obligations under Regulation 1049, or using the rule’s exceptions in a more expansive way.

"There are huge delays, endless delays," she says. "It’s always been a source of frustration and obviously more so for the people who are trying to access the documents. It seems that information is something that is very jealously guarded, particularly by the commission, particularly by this commission."

This, she argues, is more egregious when it comes to the process of making EU law. Under Regulation 1049, there is a higher transparency threshold when it comes to the legislative process because of the right for people to know how law is being made.

In some instances, she accuses the commission of also disregarding EU case law on the release of documents.

While the requests for documents have increased over O’Reilly’s two terms, the nature of the crises that have roiled the EU - the banking crash, migration, Covid, the Russian invasion of Ukraine - has given European citizens a more acute sense that they want to know what is going on, and how decisions are being made.

The juddering impact of Covid-19 is a case in point. The issue of the text messages Ursula von der Leyen shared with the chief executive of Pfizer during the fretful weeks before the mass roll-out of vaccines has become a lightning rod for critics of the commission president.

In April 2021, Von der Leyen told the New York Times that "personal diplomacy", including text messages and phone calls with the head of Pfizer, had "played a big role" in the final vaccine deal.

After Austrian investigative journalist Alexander Fanta sought documents surrounding the Pfizer contracts, including text messages, the commission refused, with Von der Leyen telling Sophie In ‘t Veld MEP that such messages were "short-lived and ephemeral" and did not fall under the scope of Regulation 1049.

The MEP wrote to O’Reilly in protest. O’Reilly flatly contradicted President von der Leyen, declaring that the rules were clear: any content, whether on paper or in electronic form, fell within the freedom of information remit.

"The commission was essentially stonewalling," O’Reilly now says. "That's what it was."

The case did not end there. The New York Times has taken the European Commission to the Court of Justice in order to get the text messages released, so the issue is pending. "I don't think there's any issue about SMS messages not being documents," says O’Reilly, "because they are. The medium doesn't matter. It's the message."

Other observers take a more nuanced view, that the original transparency regulation, dating back to 2001, has been overtaken by the modern systems of informal communication between officials at all levels of the EU institutions, governments and companies.

"Even [Von der Leyen] wanted to hand over the text messages," says one former EU official, "that would have opened a Pandora’s box. It’s a big issue in the institutions. Everyone is WhatsApp-ing everyone else. Yet, all commissioners’ technical work is potentially FOI-able. That would be an appalling vista, but technically it’s the law."

Another high-profile case has burned deeply into Emily O’Reilly’s professional and personal sensitivities.

On 14 June last year, a fishing trawler called the Adriana sank off the coast of Messenia in Greece, having disembarked from Libya four days earlier. The boat was desperately overcrowded with some 750 smuggled migrants on board.

The vessel had been spotted from the air and sea by the Greek coast guard and there remain allegations that it was when the Greek patrol boat attempted to tow the Adriana that it sank, with devastating loss of life (some 600 people are thought to have drowned).

However, it was the role of the EU’s border agency Frontex in the tragedy that brought the case to O’Reilly’s attention (her daughter had just given birth to her first grandchild).

"Imagine, 600 people in the water. Just imagine: the terror of that. Imagine as well that there are children and mothers and babies. It just affected me very deeply."

An investigation by O’Reilly’s team has reflected the twilight space between where national and EU competences apply in a deadly emergency.

The Greek authorities were in charge of the ill-fated rescue operation, so O’Reilly had no mandate to investigate the role of the Greek coast guard.

Frontex was also bound by Greek sovereignty as the moments unfolded. The investigation found that Frontex, which had a helicopter in the area, videoing the trawler, contacted the coast guard four times, and four times did not receive a response.

That meant the EU’s border agency acted within the law. Frontex did have autonomy to issue a Mayday signal, but chose not to on the grounds that those on the Adriana did not appear in immediate danger.

However, it was O’Reilly’s contention that Frontex knew the Adriana had been floating around for several hours, that it was overcrowded, that those on board did not have life jackets, that there were children on board. NGOs had alerted Frontex to the imminent dangers.

In the event, the ombudsman ruled that Frontex had acted within the rules. However, she highlighted shortcomings in how the agency reacts in emergencies when it gets involved in either joint maritime operations or aerial surveillance.

There was inadequate guidance on how Frontex should respond where they detect boats in potential emergency situations including the issuance of Mayday signals. Frontex fundamental rights monitors also needed to be more involved in decision making during emergencies at sea.

But what angered O’Reilly was an apparent indifference at national and EU level to a horrific maritime disaster, and that, other than thorough media investigations, no-one at official level wanted to look into it.

"The reaction was mainly focused on voters," she recalls. "Yes, it was bad people who pushed all those people onto those boats, knowing that there was a strong chance that bad things would happen. I absolutely get that. But subsequently, there was almost like a shoulder shrug. It was because of the particular thing my family was going through, a first grandchild, a baby, and all of that, that the two things came together."

How the EU manages migration has increasingly preoccupied O’Reilly’s team. In March this year she launched an investigation into an agreement between the EU and Tunisia whereby in return for financial and other support, Tunisia will crack down on the people smugglers who have been sending boatloads of migrants into the waters of the Mediterranean.

In particular, O’Reilly has wanted to know why there was no impact assessment within the deal on human rights. The case is ongoing, with O’Reilly responding to an initial letter from Von der Leyen by asking for more detail, and more documents.

The issue, however, has taken on a new urgency following a Guardian investigation into widespread allegations of sexual abuse and torture of thousands of sub-Saharan African migrants by a special unit of Tunisia’s national guard, in charge of a huge encampment on the country’s eastern coast.

Worryingly, there are claims that the national guard is receiving a substantial slice of the €105 million in EU funding to the Tunisian government. The suspicion is that Tunisia’s autocratic President Kais Saied is deliberately containing a huge volume of migrants as leverage to keep EU funds coming.

O’Reilly is mindful of the growing anti-migrant climate in Ireland, as well as the increasing temptation in EU member states to outsource the migrant issue to north African countries.

"Politicians have put themselves into leadership positions," she says. "They have to show leadership, not follow the herd. They must be honest and open about what they're doing. The MoU (memorandum of understanding) with Tunisia: what do people understand that is exactly? What is it about? Is it mainly about keeping migrants out, or is it about what?"

Despite her concerns about how the EU is managing migration, and the increasing role in defence that the EU is adopting following Russia’s invasion of Ukraine, she remains a committed and enthusiastic supporter of the European project.

"Ireland joining the EU enabled my public life," she told a group of journalists in Brussels recently. "Certainly, it wasn't my own government that was going to do that. They still wanted me in the kitchen with no rights whatsoever, and it was the EU and the commission, the faceless bureaucrats, who forced the government to take on the equality measures that allowed women of my generation to have the life that some of us have been able and fortunate to have."

"Whatever I do next, it has to be consequential and impactful"

As that professional life takes another turn, O’Reilly is more adamant than can be humanly expressed that she has no interest in becoming President of Ireland.

"Whatever I do next, it has to be consequential and impactful. I've had an incredibly privileged career in journalism, which was wonderful, as the Irish and then European ombudsman.

"There are issues I'm particularly interested in. One is violence against women in the home, but not from the usual standpoint of the legal and other ways we can deal with this.

"There’s a huge conversation we need to have with men in relation to this, and they do not feature in these conversations. Most of the debates are led by women. Most of the people who speak about this are understandably women. But there's a huge, huge part of the population that could be more involved in this."

O’Reilly formally finishes in February. New candidates are coming forward and holding discussions with MEPs, who uniquely elect the European Ombudsman. There are strong suspicions that the EPP, the biggest political group, will want a less ambitious ombudsman, now that O’Reilly is departing.

The parliament that elected her in 2013 was much more centre-left leaning; today the chamber has swung distinctly to the right and is a more fragmented and adversarial environment.

"I think they will want somebody who will take a more, shall we say, back-to-basics approach. It’s the prerogative of the parliament. They can choose. It's their gig."