Case T‑217/11

Claire Staelen

v

European Ombudsman

‛Non-contractual liability — Handling by the Ombudsman of a complaint concerning the management of a list of suitable candidates for an open competition — Powers of investigation — Duty to exercise diligence — Loss of opportunity — Non-pecuniary damage’

Summary — Judgment of the General Court (Fourth Chamber), 29 April 2015

Non-contractual liability — Conditions — Causal link — Concept — Damage arising, for a competition candidate, from loss of a chance to be recruited following unlawful acts by the European Ombudsman — Decisive cause of the damage not residing in the actions of the Ombudsman — No causal link

European Ombudsman — Investigations — Duty of diligence — Finding of no maladministration solely on the strength of statements by the institution concerned by an inquiry — Infringement — Fault capable of rendering the Union liable

Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of EU law — Infringement by the European Ombudsman of the obligation of diligence in the context of an inquiry into cases of maladministration — Included

Actions for damages — Autonomy in relation to action for annulment and action for failure to act — Admissibility of an action concerning conduct imputable to an institution or body of the Union — No final decision on certain factual elements investigated by the defendant on his own initiative — Irrelevant

See the text of the decision. (see para. 55)

The action for damages was introduced by the FEU Treaty as an autonomous form of action, with a particular purpose to fulfil within the system of actions and subject to conditions on its use dictated by its specific purpose. Whereas 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. Therefore, in the case of an action for compensation in respect of loss allegedly suffered on account of the European Ombudsman’s handling of a complaint, the admissibility of the action cannot be affected by the fact that the Ombudsman has not yet taken a final decision on certain aspects covered by an inquiry opened on his own initiative in order to verify whether there was maladministration on his part in assessing the applicant’s situation. (see paras 59, 60)

See the text of the decision. (see paras 68, 69)

In order for the Union to be made non-contractually liable, with regard to the condition relating to the unlawful conduct of an institution, it is required that there be established a sufficiently serious breach of a rule of law intended to confer rights on individuals. That condition relating to the protective nature is fulfilled where the rule of law infringed, while in essence covering general interests, also ensures the protection of the individual and particular interests concerned. The principle of diligence and the right to sound administration clearly have a protective nature in relation to individuals. The same is true of the rules governing inquires conducted by the Ombudsman, as those rules permit an individual to lodge complaints concerning cases of maladministration and to be informed of the outcome of the inquires conducted in this regard by the Ombudsman. (see paras 70, 88)

As regards the margin of discretion which the European Ombudsman has regarding the initiation and the scope of the inquiries to be conducted and regarding the investigation instruments to be used, only where he has manifestly and gravely disregarded the limits on his power of inquiry conferred by Article 3(1) of Decision 94/262 on the regulations and general conditions governing the performance of the Ombudsman’s duties (‘Decision 94/262’) and by Articles 4.1, 5 and 9.2 of the Implementing provisions adopted by the Ombudsman pursuant to Article 14 of Decision 94/262 (‘the Implementing provisions’) can there be a sufficiently serious breach capable of establishing the liability of the European Union. However, since the Ombudsman must exercise his discretion in relation to the inquiry in accordance with the higher-ranking rules of Union law, the discretion conferred on him by Decision 94/262 and by the Implementing provisions regarding the measures of inquiry to be taken in the exercise of his task does not exempt him from respecting the principle of diligence. Although the Ombudsman is free to decide to initiate an inquiry and, if he decides to do so, he may take all the measures of inquiry which he considers justified, he must nevertheless satisfy himself that, following those measures of inquiry, he is able to examine carefully and impartially all the relevant elements in order to decide on the merits of an allegation of a case of maladministration and the way in which he deals with that allegation. Respect for the principle of diligence by the Ombudsman in the exercise of his competences is particularly important because he is specifically given the task, under Article 228(1) TFEU and Article 3(1) of Decision 94/262, of identifying and seeking to eliminate instances of maladministration in the general interest and in the interest of the citizen concerned. The Ombudsman does not therefore have discretion concerning respect for the principle of diligence in a specific case. Consequently, a mere breach of the principle of diligence is sufficient to establish the existence of a sufficiently serious breach to render the European Union liable. However, not every irregularity committed by the Ombudsman constitutes a breach of the principle of diligence. Only an irregularity committed by the Ombudsman in the exercise of his powers of investigation the result of which is that he was not able to examine carefully and impartially all the relevant elements in order to decide on the merits of an allegation of a case of maladministration on the part of an EU institution, body, office or agency and the way in which he deals with that allegation can establish the European Union’s non-contractual liability on account of a breach of the principle of diligence. (see paras 78-80, 85-87)

Where a Union institution has a wide discretion, the review of observance of guarantees conferred by the Union legal order in administrative procedures is of fundamental importance. Those guarantees include respect for the principle of diligence, that is to say, for the competent institution, the obligation to examine carefully and impartially all the relevant elements of the individual case. In that regard, compliance with the duty of the competent institution to gather, in a diligent manner, the factual elements necessary for the exercise of its broad discretion as well as the review thereof by the EU judicature are all the more important because the exercise of that discretion is only subject to a limited judicial review of the merits, confined to examining whether a manifest error has been committed. Thus, the obligation for the competent institution to examine carefully and impartially all the relevant elements of the individual case is a necessary prerequisite to enable the EU judicature to ascertain whether the elements of fact and of law on which the exercise of that broad discretion depends were present. (see paras 83, 84)

In the context of an own-initiative inquiry the Ombudsman is not required of his own motion to cease an investigation where a person concerned by that investigation has objected to it. No provision of Decision 94/262 or of the Implementing provisions requires the Ombudsman to obtain the complainant’s agreement to conduct inquiries into an EU institution or body. Similarly, no provision requires the Ombudsman to make inquiries on his own initiative only where that is justified by an overriding public interest. However, his duty to conduct an inquiry with diligence requires him to take into account all the relevant elements when he proceeds with investigation measures. Those elements include the attitude of the persons involved and the public interest in the inquiry. The Ombudsman has discretion in weighing those elements in order to determine whether or not to proceed with an inquiry. (see paras 155, 156)

Whilst the EU judicature has jurisdiction to determine whether certain actions of the institutions may establish the liability of the European Union, it does not have jurisdiction to find, on the basis of those actions, that a criminal offence has been committed. Consequently, the allegation concerning a finding by the Court that the Ombudsman is guilty of the criminal offence of forgery is inadmissible. (see para. 165)

Under Article 13.3 of the Implementing provisions, the complainant does not have access to documents or information obtained by the Ombudsman from institutions in his inquiry which have been identified to the Ombudsman as confidential. Article 10.1 of the Implementing provisions stipulates that if the complainant so requests, the Ombudsman classifies a complaint as confidential. Those provisions do not lay down an exception or a specific procedure for verifying the validity of requests for confidential treatment. Consequently, it is not for the Ombudsman to challenge the requests made by the institutions for the confidential treatment of certain documents or certain information regarding complainants, just as it is not for the Ombudsman to challenge a request made by a complainant for confidential treatment of a complaint. However, where, in a decision, the Ombudsman bases his assessment on confidential information and a complainant challenges the lawfulness of that decision before the EU judicature, the Ombudsman cannot legitimately rebut the complaints made by the complainant with considerations based on confidential information to which neither the complainant nor the Court has access. If the Ombudsman does not permit the disclosure of that information, in whole or in part, on the ground that it is confidential, the EU judicature is to undertake an examination of the lawfulness of the contested decision solely on the basis of the material which has been disclosed. (see paras 178, 179, 181)

It is clear from a combined reading of Articles 29 and 30 of the Staff Regulations that it is for the Appointing Authority to determine the period of validity of a list of suitable candidates in a competition. The Appointing Authority enjoys broad discretion in this regard which must be exercised having regard to general principles such as the principle of equal treatment and the duty to state reasons. (see para. 193)

See the text of the decision. (see para. 198)

The fact that an explanation given by an institution to the Ombudsman in an inquiry may seem convincing does not exempt the Ombudsman from his responsibility to satisfy himself that the facts on which that explanation is based are proven where the explanation constitutes the sole basis for his finding that there is no maladministration on the part of an institution. Thus, the Ombudsman does not act with all due diligence when he finds that there has been no maladministration on the part of an institution, relying on the explanations given by that institution regarding the recruitment of successful candidates in a competition without having received evidence to attest the date of recruitment of each of those successful candidates and when those explanations have proved to be unfounded. That failure to exercise diligence may establish the liability of the European Union for the Ombudsman’s conduct. However, the fact the Ombudsman has erroneously relied on statements of the institution concerned does not constitute proof of the Ombudsman’s bad faith or desire to conceal his own fault. (see paras 204, 205, 236)

See the text of the decision. (see paras 214, 329)

See the text of the decision. (see para. 247)

See the text of the decision. (see para. 252)

The European Code of Good Administrative Behaviour is not a legal provision but a resolution of the Parliament amending a draft which had been submitted to it by the European Ombudsman and calling on the Commission to submit a legislative proposal in that respect. Thus, in adopting the Code of Good Behaviour, the Ombudsman’s aim was not to lay down rules of law conferring rights on individuals. Consequently, failure to respect those rules is not enough for a finding of a sufficiently serious breach of a rule of law intended to confer rights on individuals which is capable of establishing the liability of the European Union. It is only inasmuch as the provisions of that Code constitute an expression of the fundamental right to good administration as enshrined in Article 41 of the Charter of Fundamental Rights that they are capable of establishing the liability of the European Union. Thus, the rule under Article 14 of the Code of Good Behaviour that every letter to an institution must receive an acknowledgement of receipt within a period of two weeks is a simple procedural rule which is not expressly provided for by Article 41 of the Charter of Fundamental Rights. Failure to respect that rule cannot therefore establish the liability of the European Union. (see paras 263-265)

See the text of the decision. (see paras 273, 274)

In an action for compensation, a causal link is recognised where there is a sufficiently direct causal link between the impugned conduct of the institution and the loss pleaded, the burden of proof of which rests on the applicant. The impugned conduct must thus be the decisive cause of the loss. That is not the case with the causal link between damage consisting in loss of a competition candidate’s chance of being recruited and faults committed by the European Ombudsman, where the decisive cause of the loss resides in the actions of the EU institution which organised the competition and not in those of the Ombudsman. Even if the Ombudsman should have cooperated with the institution in seeking a friendly solution and, were that not possible, have made a critical remark or made a report, neither of those measures is legally binding. Whether cooperation results in a friendly solution depends on both the Ombudsman and the institution. In the absence of any binding effect of the measures that may be adopted by the Ombudsman in respect of the institution, those measures cannot be regarded as the decisive cause of a loss consisting in the loss of opportunity of recruitment for the applicant. That assessment is not called into question by the argument that the institution has always followed the Ombudsman’s recommendations and that a refusal could have given grounds for an action for damages against the institution. Even if that were proven, it would not provide a sufficiently direct causal link between the unlawful acts committed by the Ombudsman and the loss of opportunity of recruitment for the applicant. (see paras 275, 281, 284-286)

The inclusion of a successful candidate’s name on the list of suitable candidates in a competition does not give him a right to be recruited. The discretion available to the institutions in relation to the recruitment of successful candidates in competitions precludes such a right. Consequently, in an action for compensation in respect of damage suffered on account of a wrongful act affecting the inclusion of a person’s name on a list of suitable candidates in a competition, the damage suffered cannot correspond to the loss of earnings resulting from the loss of that right. Whilst it is very difficult, if not impossible, to define a method to quantify precisely the opportunity of recruitment to a job within an institution and therefore to assess the loss resulting from the loss of opportunity, it cannot be inferred therefrom that a claim for compensation for loss of opportunity must be dismissed automatically as inadmissible or unfounded. (see paras 277, 280)