Order of the Court of First Instance (Third Chamber) of 22 February 2001. - Frank Lamberts v European Ombudsman and European Parliament. - Non-contractual liability - European Ombudsman - Parliament - Independence of Ombudsman - Manifest inadmissibility of action against the Parliament. - Case T-209/00.



European Court reports 2001 Page II-00765



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

Actions for damages - Non-contractual liability - Action against the Ombudsman and the Parliament for compensation for damage allegedly suffered as a result of the Ombudsman's conduct - Action against the Parliament - Inadmissibility

(Art. 195(3) EC)

Summary

$$An action brought against the European Ombudsman and the European Parliament for compensation for damage allegedly suffered as a result of the Ombudsman's conduct when dealing with a complaint must be held inadmissible in so far as it is brought against the Parliament. It is clear from Article 195(3) EC that the Parliament has no legal possibility of influencing the conduct of the Ombudsman in respect of the complaint, so that any wrongful acts or omissions by the Ombudsman in performing the tasks assigned to him under the Treaty cannot in any event be imputed to the Parliament.

( see paras 15-19 )

Parties

In Case T-209/00,

Frank Lamberts, residing at Linkebeek (Belgium), represented by É. Boigelot, lawyer, with an address for service in Luxembourg,

applicant,

v

European Ombudsman, represented by J. Sant'anna, acting as Agent, with an address for service in Luxembourg,

and

European Parliament, represented by H. Krück and C. Karamarcos, acting as Agents, with an address for service in Luxembourg,

defendants,

APPLICATION for compensation for material and non-material damage allegedly suffered by the applicant as a result of the conduct of the Ombudsman in dealing with a complaint which the applicant brought before the Ombudsman on 23 June 1998,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: J. Azizi, President, K. Lenaerts and M. Jaeger, Judges,

Registrar: H. Jung,

makes the following

Order

Grounds

Legal context

1 Article 195 EC provides:

1. The European Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.

In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution concerned.

The person lodging the complaint shall be informed of the outcome of such inquiries. The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.

2. The Ombudsman shall be appointed after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.

The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.

3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any body. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.

4. The European Parliament shall, after seeking an opinion from the Commission and with the approval of the Council acting by qualified majority, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.

2 On 9 March 1994, the Parliament, in compliance with Article 195(4) EC, adopted Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (OJ 1994 L 113, p. 15).

Facts giving rise to the proceedings

3 The present proceedings arise out of the applicant's participation in an internal competition for the establishment as officials of members of the temporary staff in Grade A (COM/T/A/98) organised by the Commission of the European Communities. After succeeding in the written tests, the applicant attended the oral test on 27 April 1998, in spite of the fact that on 2 April 1998 he suffered an accident necessitating serious medical and medicinal treatment. Having been informed, after the oral test, that he had not obtained the minimum number of points over all the tests and that, therefore, he had not been included in the list of suitable candidates, the applicant requested the chairman of the selection board in the competition to re-examine his case. To that end he relied on the fact that he had taken the oral test under the influence of medicines capable of causing fatigue but, in spite of that, he thought that he had to attend the oral test because the letter inviting him to it stated that the organisation of the tests did not [permit] any change to the time-table communicated [to him]. By letter dated 10 June 1998, the relevant head of unit of the Commission confirmed the result of the competition.

4 On 23 June 1998 the applicant submitted to the Ombudsman a complaint against the decision of 10 June 1998 confirming the result of the competition. In his decision of 21 October 1999 on that complaint, the Ombudsman noted that, in the interest of good administration, the Commission should have included, in the letter of invitation to the oral test, a passage informing candidates of the possibility of seeking a postponement, if exceptional circumstances prevented them from being present on the date indicated in the invitation. However, he decided that, because the applicant's complaint concerned procedures involving specific facts which arose in the past, there was no need to seek an amicable solution with a view to satisfying the applicant. Following this decision, the applicant applied on several occasions to the Ombudsman requesting him to seek an amicable solution with the Commission concerning his case. This suggestion was rejected by the Ombudsman.

Proceedings and claims

5 The applicant brought this action by application dated 9 August 2000, lodged at the Registry of the Court of First Instance on 10 August 2000.

6 The applicant claims that the Court of First Instance should:

- declare the action against the Ombudsman and the Parliament admissible and well founded;

- order the Ombudsman and the Parliament jointly and severally to pay, first, the sum of EUR 2 468 787, or, alternatively, the sum of EUR 1 234 394, as damages for material loss and, secondly, the sum of EUR 124 000 as damages for non-material loss, with interest thereon until full payment;

- order the Ombudsman and the Parliament jointly and severally to pay the costs.

7 By separate documents lodged at the registry of the Court of First Instance on the 13 and 16 October 2000 respectively, the Ombudsman and the Parliament raised a preliminary objection of inadmissibility of the action under Article 114 of the Court's Rules of Procedure.

8 The Ombudsman claims that the Court should:

- declare the action manifestly inadmissible;

- make an appropriate order as to costs.

9 The Parliament claims that the Court should:

- declare the action inadmissible;

- order the applicant to pay the costs.

10 The applicant lodged his observations on the preliminary objection on 21 November 2000.

Admissibility

11 Under Article 114(1) and (4) of the Rules of Procedure, if a party so requests, the Court may decide on the admissibility of a case without considering its substance.

12 In the present case the action is brought against the Ombudsman and the Parliament. In so far as the action has been brought against the Parliament, the Court considers itself sufficiently informed by the documents in the file to rule on the request without opening the oral procedure, as permitted under Article 114(3) of the Rules of Procedure. As a result, this order relates to the admissibility of the action only in so far as it has been brought against the Parliament.

13 The Parliament, supported by the Ombudsman, submits that the action is inadmissible in so far as it has been brought against the Parliament, since the actions of the Ombudsman in the exercise of his functions cannot in any case be imputed to the Parliament.

14 The applicant admits that the Ombudsman is not an organ of the Parliament. However, he is comparable to an agent who must fully and faithfully fulfil the task entrusted to him if he is not to cause his principal, the Parliament, to incur civil liability. According to the applicant, the actions of the Ombudsman must be imputed to the Parliament because of a set of circumstances which create a link between it and the Ombudsman. In this respect, the applicant states that it follows from Article 195 EC that the Ombudsman is appointed by the Parliament, and can be dismissed by the Court of Justice at the request of the Parliament, and that the Parliament exercises control over the Ombudsman since it establishes the regulations and general conditions governing the performance of the Ombudsman's duties. Furthermore, the business of the Ombudsman is complementary to that of the Parliament in so far as there is cooperation between the Ombudsman and the Parliament's Committee on Petitions, and the Parliament has a power of control and direction over the Ombudsman through its scrutiny of the Ombudsman's annual report. Finally, the Ombudsman is financially dependent on the Parliament.

15 In the context of this action, the Court finds, at the outset, that the applicant is criticising the Ombudsman, on the one hand, for not having advised him in good time to bring an action before the Court against the decision of the selection board not to include him in the list of suitable candidates, and, on the other hand, for having wrongfully failed to seek an amicable solution with the Commission which would satisfy him. This action therefore seeks compensation on account of the conduct of the Ombudsman in the exercise of the functions assigned to him by Article 195 EC.

16 It should be pointed out that under Article 195(3) EC:

[T]he Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any body.

17 The Parliament therefore has no legal possibility of influencing the conduct of the Ombudsman in respect of the complaint brought before him by the applicant on 23 June 1998. Any wrongful acts or omissions by the Ombudsman in performing the tasks assigned to him under the EC Treaty cannot in any event be imputed to the Parliament.

18 Contrary to what the applicant maintains, that conclusion is not invalidated by the existence of the various links between the Ombudsman and the Parliament under Article 195 EC. These links, which relate only to general organisation and not to functions, do not enable the Parliament to influence his conduct in the treatment of a specific complaint which he has received under Article 195(1) EC.

19 It follows from the foregoing that the action must be declared inadmissible in so far as it has been brought against the Parliament.

Decision on costs

Costs

20 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the successful party's pleadings. However, the Court may, under paragraph 3 of the article, where the circumstances are exceptional, order that each party bear its own costs.

21 In this case, because of the general interest of the question raised, which has not yet been the subject of a decision of the Court of Justice or of this Court, the parties must bear their own costs incurred in the present action in so far as it has been brought against the Parliament.

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1. The application is dismissed as inadmissible in so far as it has been brought against the Parliament.

2. The parties shall bear their own costs incurred in the present action in so far as it has been brought against the Parliament.