Keywords
Summary

Keywords

1. Actions for damages - Subject-matter - Action for compensation for damage caused by the Community institutions - Definition of institution - Jurisdiction of the Community Courts to rule on alleged negligence on the part of the Ombudsman

(Arts 235 EC and 288, second para., EC; Council Decision 88/591, as amended by Decision 1999/291)

2. Actions for damages - Subject-matter - Action for compensation for damage caused by the Commission's failure to institute proceedings under Article 226 EC - Inadmissible - Action for compensation for damages caused by a manifest error committed by the Ombudsman in the performance of his duties - Admissible

(Arts 235 EC and 288, second para., EC; Council Decision 88/591, as amended by Decision 1999/291)

3. Actions for damages - Independent of actions for annulment - Inadmissibility of an action for annulment of a legally binding measure - No effect on the admissibility of an action seeking compensation for damage caused by the adoption of the contested measure

(Arts 235 EC and 288, second para., EC)

4. Non-contractual liability - Conditions - Unlawfulness - Damage - Causal link

(Art. 288, second para., EC)

5. European Ombudsman - Alternative remedy to that of an action before the Community Court - The two remedies cannot be pursued at the same time - Assessment of the expediency of an action before the Ombudsman is a matter for the citizen

(Art. 195(1) EC; Statute of the European Ombudsman, Art. 2(6) and (7))

6. European Ombudsman - General obligation to inform complainants of the judicial remedies available and the time-limits for availing themselves thereof - No such obligation

(Statute of the European Ombudsman, Art. 2(5))

7. European ombudsman - Time-limit for dealing with complaints - Indicative time-limit of one year - Whether reasonable time-limit exceeded to be assessed in the light of the circumstances

8. European Ombudsman - Settlement according with the specific interest of the citizen concerned to be sought - Duty to cooperate with the institution concerned

(Statute of the European Ombudsman, Art. 3(5))

9. European Ombudsman - Making of critical remarks - Protection of the individual interests of the citizen concerned - No such protection

10. Procedure - Costs - Compensation - Exceptional circumstances - Assessment

(Rules of Procedure of the Court of First Instance, Art. 87(3), first para.)

Summary

1. Under Article 235 EC and the second paragraph of Article 288 EC, and Decision 88/591 establishing a Court of First Instance of the European Communities, as amended by Decision 1999/291, the Court of First Instance has jurisdiction in disputes relating to compensation for damage caused by Community institutions. The term institution used in the second paragraph of Article 288 EC must not be understood as referring only to the Community institutions listed in Article 7 EC. The term also covers, with regard to the system of non-contractual liability established by the Treaty, all other Community bodies established by the Treaty and intended to contribute to achievement of the Community's objectives. Consequently, measures taken by those bodies in the exercise of the powers assigned to them by Community law are attributable to the Community, according to the general principles common to the Member States referred to in the second paragraph of Article 288 EC. The Court of First Instance therefore has jurisdiction to entertain an action for compensation for damage allegedly sustained as a result of negligence on the part of the European Ombudsman in the performance of the duties assigned to him by the Treaty.

( see paras 49, 51-52 )

2. The Court of First Instance's jurisdiction to rule on actions alleging negligence on the part of the European Ombudsman is not affected by the case-law which states that an action for damages is inadmissible where it is based on liability resulting from the Commission's failure to institute proceedings under Article 226 EC, since that institution is in any case under no obligation to institute such proceedings. The role which the Treaty and Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman's duties have assigned to the Ombudsman differs, at least in part, from that assigned to the Commission in the context of proceedings under Article 226 EC for failure to fulfil obligations. In the context of such proceedings the Commission exercises the powers conferred on it by Article 211 EC, first indent, in the general Community interest, in order to ensure the application of Community law. Moreover, in that context it is for the Commission to decide whether it is appropriate to bring such proceedings.

However, as regards the manner in which the Ombudsman deals with complaints, it is necessary to take into account the fact that the Treaty confers on all citizens both the subjective right to refer to the Ombudsman complaints concerning instances of maladministration on the part of Community institutions or bodies, apart from the Court of Justice and the Court of First Instance in the exercise of their judicial functions, and the right to be informed of the result of inquiries conducted in that regard by the Ombudsman under the conditions laid down by Decision 94/262 and the implementing provisions. Decision 94/262 also assigns to the Ombudsman not only the task of identifying and seeking to eliminate instances of maladministration on behalf of the public interest but also that of seeking, so far as is possible, a settlement that is in accordance with the specific interest of the citizen concerned. The Ombudsman has indeed very wide discretion as regards the merits of complaints and the way in which he deals with them, and in so doing he is under no obligation as to the result to be achieved. However, even if review by the Community judicature must consequently be limited, it is possible that in very exceptional circumstances a citizen may be able to demonstrate that the Ombudsman has made a manifest error in the performance of his duties likely to cause damage to the citizen concerned.

( see paras 53-57 )

3. The action for damages provided for under the Treaty was introduced as an autonomous form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions of use dictated by its specific purpose. Although actions for annulment and for failure to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action for damages seeks compensation for damage resulting from a measure, whether legally binding or not, or from conduct, attributable to a Community institution or body. Thus, the European Ombudsman's wrongful conduct in connection with the attempt to reach a non-judicial settlement of a case of maladministration may adversely affect citizens' rights.

( see paras 58-59 )

4. Article 288 EC makes clear that for the Community to incur liability the applicant must prove that the conduct of which the body concerned is accused was unlawful, that damage occurred and that there was a causal link between that conduct and the damage complained of.

( see para. 62 )

5. In the institution of the European Ombudsman, the Treaty has given citizens of the Union, and more particularly officials and other servants of the Community, an alternative remedy to that of an action before the Community Court in order to protect their interests. That alternative non-judicial remedy meets specific criteria and does not necessarily have the same objective as judicial proceedings. Moreover, as is clear from Article 195(1) EC and Article 2(6) and (7) of Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman's duties, the two remedies cannot be pursued at the same time. Indeed, although complaints submitted to the Ombudsman do not affect time-limits for appeals to the Community Court, the Ombudsman must none the less terminate consideration of a complaint and declare it inadmissible if the citizen simultaneously brings an appeal before the Community Court based on the same facts. It is therefore for the citizen to decide which of the two available remedies is likely to serve his interests best. Where the complaint is brought by a servant of the Communities, the applicant is, in any event, deemed to be aware of the procedure for bringing an action before the Court of First Instance since that procedure is expressly laid down in the Staff Regulations.

( see paras 65-67 )

6. Under Article 2(5) of Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman's duties and Article 3.2 of the implementing provisions, the Ombudsman may advise the citizen concerned to apply to another authority and, where appropriate, to bring an action for annulment before the Court of First Instance. It may be in the interests of the proper performance of the task entrusted to him by the Treaty for the Ombudsman to routinely inform the citizen concerned of the measures to take in order to best serve his interests, including indicating to him the judicial remedies open to him and the fact that referring a complaint to the Ombudsman does not suspend the time-limit for pursuing such remedies. There is, however, no express provision requiring the Ombudsman to take such steps. The Ombudsman cannot, therefore, be accused of having failed to draw the applicant's attention to the fact that his complaint had no suspensive effect and of not advising him to bring an action before the Community Court. The Ombudsman did not, therefore, in this context commit a breach of administrative duty which could give rise to non-contractual liability on the part of the Community.

( see paras 68-69 )

7. Neither Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman's duties nor the implementing provisions specify a time-limit within which the European Ombudsman must deal with complaints. It was only in his annual report for 1997 that the Ombudsman stated that the objective should be to carry out the necessary inquiries into a complaint and inform the citizen of the outcome within one year, unless there are special circumstances which require a longer investigation (antepenultimate paragraph of the foreword). In that statement the Ombudsman merely set himself an indicative, not a mandatory, time-limit for dealing with complaints. It must be stated, however, that in order to comply with the requirements of proper administration, in particular, the procedure before the Ombudsman must be completed within a reasonable time, to be determined according to the circumstances of the case. Accordingly, account should be taken of the fact that the Treaty and Decision 94/262 conferred on the Ombudsman not only the task of seeking, so far as possible, a settlement in accordance with the specific interest of the citizen concerned, but also that of identifying and seeking to eliminate instances of maladministration in the public interest. Where, following intervention by the Ombudsman in connection with the applicant's complaint, the Commission, in the interests of proper administration, has altered its administrative practice with regard to inviting candidates to attend the oral tests of a competition, the fact that almost 16 months elapsed between the applicant making his complaint and the Ombudsman taking his decision cannot be regarded as a breach of the Ombudsman's duties.

( see paras 74-77 )

8. Although Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman's duties confers on the Ombudsman the task of seeking, so far as possible, a settlement in accordance with the specific interest of the citizen concerned, he enjoys very wide discretion in that regard. Consequently, the Ombudsman cannot incur non-contractual liability save where he has committed a flagrant and manifest breach of his obligations in that connection. Article 3(5) of Decision 94/262 and Article 6 of the implementing provisions state that the Ombudsman must cooperate with the institution concerned in order to achieve that objective and cannot, in principle, merely forward the opinions of the institution to the citizen concerned. He must in particular decide whether a settlement acceptable to the citizen may be sought and adopt to that end an active role with regard to the institution concerned.

( see paras 79-80 )

9. A breach of Article 7 of the implementing provisions of Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman's duties, under which the Ombudsman may make a critical remark where the instance of maladministration has no general implications, cannot in any event cause damage to the applicant. Neither a critical remark nor a report which may contain a recommendation with regard to the institution concerned is designed to protect the individual interests of the citizen concerned against damage which may arise as a result of maladministration on the part of a Community institution or body.

( see paras 86-87 )

10. Under the first subparagraph of Article 87(3) of the Rules of Procedure, the Court may, in derogation from the first paragraph of Article 87(2) of those rules, order that the parties bear their own costs where the circumstances are exceptional. In that regard, it is necessary to take into account, first, the fact that the Commission altered its administrative practice after the applicant had made his complaint to the Ombudsman, although that alteration could be of no benefit to the applicant. Second, account should be taken of the similarity of the circumstances of this case to proceedings between the Communities and their servants, in which, according to Article 88 of the Rules of Procedure, the Community institutions and bodies are to bear their own costs.

( see paras 91-93 )