JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

29 April 2015 ( *1 )

‛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’

In Case T‑217/11,

Claire Staelen, residing in Bridel (Luxembourg), represented initially by L. Levi, M. Vandenbussche and A. Blot, then by F. Wies and A. Hertzog, and lastly by V. Olona, lawyers,

applicant,

v

European Ombudsman, represented by G. Grill, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,

defendant,

ACTION for damages seeking to obtain compensation for loss allegedly suffered by the applicant as a result of the European Ombudsman’s handling of her complaint concerning mismanagement of the list of suitable candidates in Open Competition EUR/A/151/98, on which she appeared as a successful candidate,

THE GENERAL COURT (Fourth Chamber),

composed of M. Prek, President, I. Labucka and V. Kreuschitz (Rapporteur), Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 9 April 2014,

gives the following

Judgment

Background to the dispute

I – The facts predating the complaint to the Ombudsman

1 On 2 March 1999, a competition notice was published in the Official Journal of the European Communities (OJ 1999 C 60 A, p. 10) concerning, inter alia, the organisation of an open competition on the basis of tests with a view to establishing a list of suitable candidates for the recruitment of French-language administrators (EUR/A/151/98) (‘Competition EUR/A/151/98’). That competition was organised by the Parliament and by the Council of the European Union. The applicant applied as a candidate in that competition.

2 The applicant, Ms Staelen, was engaged by the European Parliament on 11 November 1999 as a member of the auxiliary staff in category A until 27 November 2000. From the latter date, she was awarded a contract as a member of the temporary staff and was classified in grade A 7, step 3, then in the same grade, step 4. Her contract with the Parliament ended on 26 November 2003. Since that date she has been unemployed.

3 On 8 and 9 June 2000, the applicant participated in written tests for Competition EUR/A/151/98.

4 On 26 October 2000, the President of the Selection Board for Competition EUR/A/151/98 informed the applicant that as she had scored only 17 points in the written test, when the minimum required for that test was 20 points, she would not be admitted to the subsequent tests for that competition. On 12 January 2001, the list of suitable candidates in that competition was established.

5 On 30 January 2001, after her objection had been dismissed, the applicant brought an action at the Court of First Instance against the decision of 26 October 2000.

6 On 5 March 2003, the Court annulled the decision of the Selection Board for Competition EUR/A/151/98 of 26 October 2000 refusing to admit the applicant to tests subsequent to the written test (judgment of 5 March 2003 in Staelen v Parliament, T‑24/01, ECR-SC, EU:T:2003:52).

7 On 22 March 2004, pursuant to the judgment in Staelen v Parliament, cited in paragraph 6 above (EU:T:2003:52), the Parliament organised oral tests in which the applicant was the only candidate to participate.

8 On 22 July 2004, the applicant lodged an objection seeking notification of the results of her participation in Competition EUR/A/151/98.

9 On 18 August 2004, the Parliament informed the applicant that her name had not been included on the list of suitable candidates because the total number of points scored by her was lower than the number of points scored by the candidate in the last position on the list of suitable candidates.

10 On 19 January 2005, after her objection had been dismissed, the applicant brought an action for annulment and for damages at the Court of First Instance against the decision of 18 August 2004.

11 On 19 May 2005, the Parliament informed the applicant that it had decided to place her name on the list of suitable candidates in Competition EUR/A/151/98 and that that list was valid until 1 June 2007.

12 By order of 18 October 2006 in Staelen v Parliament (T‑32/05, EU:T:2006:328), the Court ruled that there was no longer any need to adjudicate on the action for annulment brought on 19 January 2005 and dismissed the action for damages.

13 As she had not received any job offers, the applicant wrote to several EU institutions, including the Parliament and the European Economic and Social Committee, in order to find a post. Those applications were all rejected.

II – The complaint to the Ombudsman

14 On 14 November 2006, the applicant lodged a complaint with the Ombudsman concerning maladministration by the Parliament in its management of the reserve list in Competition EUR/A/151/98 (‘the complaint’).

15 On 30 January 2007, the Ombudsman informed the applicant that the complaint would be examined and that the Parliament had been requested to submit an opinion on, first, its management of the applicant’s file following the inclusion of her name on the list of suitable candidates in Competition EUR/A/151/98 and, second, the applicant’s claim that she should be treated fairly in the context of filling vacancies within the EU institutions.

16 On 20 March 2007, the Parliament sent the requested opinion to the Ombudsman.

17 On 3 May 2007, the Ombudsman informed the Parliament that he considered it necessary to inspect its files, among other things so as to ascertain whether and how the other EU institutions had been informed of the Parliament’s decision to include the applicant’s name on the list of suitable candidates in Competition EUR/A/151/98.

18 On 11 May 2007, the applicant submitted to the Ombudsman her observations on the Parliament’s opinion concerning the complaint.

19 On 15 May 2007, the applicant asked the Parliament to extend the validity of the list of suitable candidates in Competition EUR/A/151/98. A copy of that request was forwarded to the Ombudsman on the same date. On the same date, the Ombudsman’s Office inspected the Parliament’s files. Those files included eight confidential documents.

20 On 16 May 2007, the Ombudsman drew up a ‘report on the inspection of the files by the European Ombudsman’ (‘the inspection report’). That report stated that the Ombudsman’s representatives had obtained a copy of eight confidential documents, one of which was described as follows: ‘Document entitled “pooling”, which is circulated by the European Personnel Selection Office [EPSO], indicating the number of candidates remaining on reserve lists of all competitions organised by the various [European Union] institutions’.

21 On 24 May 2007, the Ombudsman sent the inspection report to the applicant and the Parliament.

22 By letter of 24 May 2007, a copy of which was forwarded to the applicant on the same date, the Ombudsman suggested that the Parliament extend the validity of the list of suitable candidates in Competition EUR/A/151/98 in order to preserve the possibility of a friendly solution in case of a finding of maladministration. On 31 May 2007, the Parliament informed the Ombudsman that it had extended the validity of that list until 31 August 2007. On 6 June 2007, the applicant was informed that the Secretary-General of the Parliament had requested that the procedure be initiated to extend the validity of the list until 31 August 2007. On 17 July 2007, the Parliament informed the applicant that it had decided to extend the validity of the list until 31 August 2007.

23 On 28 August 2007, the applicant sent an e-mail to the Ombudsman in which she stated that the validity of the list of suitable candidates in Competition EUR/A/151/98 which included her name had been extended for only three months, whereas the period of validity of that list of suitable candidates for the initially successful candidates had been longer. By e-mail of 29 August 2007, the Ombudsman replied to the applicant’s e-mail.

24 On 15 October 2007, the Parliament informed the applicant that if she so wished, her application file would be retained for a period of two and a half years after the validity of the list of suitable candidates in Competition EUR/A/151/98 had expired. On 19 October 2007, the applicant replied that the fact that the validity of the list had been extended for only three months confirmed that she was suffering discrimination.

25 On 22 October 2007, the Ombudsman sent the applicant his decision on the complaint (‘the decision of 22 October 2007’). In that decision, the Ombudsman did not find any instance of maladministration on the part of the Parliament. In support of that finding, he stated in particular that the inspection of the Parliament’s files on 15 May 2007 had shown that since May 2005 the Parliament had only recruited French-language administrators with specialised fields of interest. He also stated that that inspection had revealed that the applicant’s candidature had been made available to all directorates-general (DGs) within the Parliament (see point 2.4 of the decision). He went on to state: ‘the inspection [had] confirmed the information already provided by Parliament in its opinion that the reserve list [of candidates in Competition EUR/A/151/98] indicating the [applicant’s] availability had been made available to other [European Union] institutions’ and that, furthermore, ‘the inspection [had] confirmed that [her] CV had been sent to the service requesting information on [her], namely, to the Council’ (see point 2.5 of that decision). Lastly, with regard to the extension of the validity of that list, he observed that this fell within the discretionary powers of the competent administration and commended the Parliament’s willingness to extend the validity of the list (see point 2.6 of the decision).

III – The own-initiative inquiry by the Ombudsman

26 Following the decision of 22 October 2007, the applicant sent the Ombudsman several letters in which she claimed that he had made errors in relation to the closure of his inquiry into the list of suitable candidates in Competition EUR/A/151/98 and the failure to publish that list officially and to circulate it within the institutions (see, in particular, the letters of 24 January, 14 July and 1 August 2008). The applicant requested that the Ombudsman reopen his inquiry on that basis. In his replies of 1 and 21 July and 1 October 2008, the Ombudsman confirmed the findings he had reached in the decision of 22 October 2007. By letter of 8 October 2008, the applicant put an end to this correspondence by asking the Ombudsman to refrain from writing to her any further.

27 On 5 November 2009, Ms P., a Member of the Parliament, contacted the Ombudsman, at the applicant’s request, to ask him to reconsider the decision of 22 October 2007. Ms P. sent the Ombudsman a reminder letter on 4 March 2010.

28 On 10 March 2010, the Ombudsman replied to the letters from Ms P., apologising for the delay in his reply and confirming his finding that there had been no maladministration on the part of the Parliament in the handling of the complaint. In particular, he reaffirmed that his inspection had confirmed that the relevant list of suitable candidates had been brought to the attention of other EU institutions and that an appointing authority’s decision concerning the date of expiry of the validity of a list of suitable candidates fell within its discretionary powers.

29 On 14 April 2010, Ms P. contacted the Ombudsman to ask him to send her his comments on the contents of a letter of 17 March 2010 which Mr W., a retired Parliament official and former colleague of the applicant, had sent to her and a copy of which she enclosed. That letter raised questions about the Ombudsman’s inquiry and made various accusations against him.

30 In a letter of 1 June 2010, Ms P. accused the Ombudsman of having committed certain wrongful acts, including distorting facts by stating that the list of suitable candidates in Competition EUR/A/151/98 which included the applicant’s name had been made available to other institutions. She further stated that the applicant had suffered serious loss as a result of the Ombudsman’s conduct and that she therefore expected him to make concrete proposals as to how that loss could be compensated.

31 On 11 June 2010, the Ombudsman replied to the letter from Ms P., apologising for the delay in replying and pointing out that the substance of the letters of 14 April and 1 June 2010 would be thoroughly and rapidly examined, that the case had been assigned to another case-handler and that she would be informed of the result of this examination before the end of June 2010.

32 On 29 June 2010, the Ombudsman informed Ms P. of the result of his examination of her letters of 14 April and 1 June 2010. First, he acknowledged that the first sentence of point 2.5 of his decision contained an error in so far as it stated that ‘the inspection confirmed the information already provided by Parliament in its opinion’ that the list of suitable candidates in Competition EUR/A/151/98 which included the applicant’s name had been made available to other EU institutions. He apologised for this to the applicant and to Ms P. Second, he explained that his conclusion that the list indicating the applicant’s availability had been made available to the other EU institutions was based on a ‘pooling’ document. He expressed his regret that he had previously not made this sufficiently clear. In addition, he acknowledged that that document did not specify the date on which the Parliament had provided the relevant information to EPSO or the other institutions, even though the chronology of events was crucial given the expiry of the validity of the list of suitable candidates on 1 June 2007. He stated that he had therefore decided to open an own-initiative inquiry in order to ascertain whether there had been an instance of maladministration on the part of the Parliament.

33 By letter of the same date, the Ombudsman informed the Parliament of the error contained in point 2.5 of the decision of 22 October 2007, its correction and his decision to open an own-initiative inquiry in order to ascertain whether there had been an instance of maladministration on the part of the Parliament in assessing the applicant’s position. Against that background, he asked the Parliament to provide him with an opinion and additional information on several issues. Thus, he asked the Parliament to specify how it had informed EPSO, the Council and the other EU institutions and bodies that the applicant’s name had been placed on the list of suitable candidates in Competition EUR/A/151/98, to explain why it had not replied to the applicant’s request of 15 May 2007 to extend the validity of that list, to explain whether it had consulted the Council before deciding on whether or not to extend the validity of that list and, if not, to explain why and comment on the fact that the applicant’s name had been placed on the list for only two years and three months whereas the names of the other candidates had been included for nearly six and a half years.

34 On 5 July 2010, the Ombudsman had a meeting with Ms P. At that meeting, Ms P. handed over to him a copy of a letter which Mr W. had sent her on 30 June 2010 and in which Mr W. pointed out that the applicant had lost all confidence in the Ombudsman’s ability to conduct an objective procedure and that the Ombudsman should therefore close his inquiry forthwith. On the same date, a meeting took place between the Ombudsman’s case-handler and Mr W., in the course of which Mr W. confirmed that the applicant suspected that there had been collusion between the Ombudsman and the Parliament.

35 On 12 July 2010, Mr W. informed the Ombudsman that the applicant objected to the new inquiry on account of suspicions of collusion between the Ombudsman and the Parliament. A copy of a document containing the applicant’s detailed comments on a new inquiry was provided to the Ombudsman. In that document, the applicant stated that her possible agreement to that inquiry depended on the Ombudsman’s responses to her suspicions.

36 By letter of 19 July 2010 sent to Mr W., the Ombudsman responded to the issues raised in the document containing the applicant’s detailed comments on a new inquiry. He assured Mr W. that there had not been any collusion and that he would be happy if the applicant consented to the continuation of the own-initiative inquiry.

37 On 26 July 2010, Mr W. replied that he and the applicant reiterated and expanded the accusations made previously. He stated that the applicant maintained her objections to the Ombudsman’s new inquiry.

38 On 8 September 2010, the Ombudsman replied to the letter from Mr W. of 26 July 2010, stating in particular that it was not useful to reply to each and every one of the arguments raised by Mr W. and by the applicant, as they appeared to be determined to submit their grievances to other bodies.

39 On 15 November 2010, the Parliament presented an opinion in response to the questions which the Ombudsman had raised with it in his letter of 29 June 2010. In its opinion, it stated that in conformity with its policy in this area all data concerning the applicant had been destroyed two and a half years after the expiry of the validity of the list of suitable candidates in Competition EUR/A/151/98, namely in March 2010. It was therefore unable to document its replies as it would normally do and instead had to rely on the memory of its officials who dealt with the case at the time. In response to the Ombudsman’s questions, it confirmed in particular that EPSO, the Council and the other EU institutions and bodies had been informed in good time that the applicant’s name had been placed on that list, that the Council had been consulted before the validity of the list was extended and that potentially interested institutions had had more time to contact the applicant than they had in relation to other persons from that list.

40 On 22 November 2010, the Ombudsman asked the Parliament new questions and informed Ms P. by a letter of the same date, a copy of which was forwarded to the applicant. In that letter, he also stated that if the applicant maintained her opposition to the own-initiative inquiry, he would limit his assessment to the information already in his possession and that still to be provided by the Parliament.

41 In its reply of 24 January 2011 to the new questions from the Ombudsman, the Parliament stated that the applicant’s file had been destroyed in its entirety and that it therefore no longer possessed any letters or e-mails informing other EU institutions and bodies that the applicant’s name had been placed on the list of suitable candidates in Competition EUR/A/151/98.

42 On 31 March 2011, the Ombudsman delivered his decision closing his own-initiative inquiry (‘the decision of 31 March 2011’). In that decision, he found that there was no maladministration on the part of the Parliament as regards the handling of the applicant’s letter of 15 May 2007 and as regards the period of time during which the applicant’s name was included on the list of suitable candidates in Competition EUR/A/151/98. He also found that there were no grounds for further inquiries in view of the applicant’s opposition and the absence of an overriding public interest.

Procedure and forms of order sought

43 By application lodged at the Registry of the General Court on 20 April 2011, the applicant brought the present action for damages.

44 The applicant claims that the Court should: — order the Ombudsman to pay her the amount of EUR 559 382.13 as compensation for past material loss, plus default interest calculated at the rate of two points above the European Central Bank rate; — order the Ombudsman to pay to the Community pension fund the pension contributions for the applicant corresponding to the basic salaries calculated for the period from June 2005 to April 2011, that is, on the basis of a total amount of EUR 482 225.97; — order the Ombudsman to pay her on a monthly basis from May 2011 to March 2026 the net amounts corresponding to the fixed salaries for AD officials from grade AD 9, step 2, second year, taking account of the normal career path of an official of that grade, together with corresponding pension fund contributions for the applicant as well as sickness insurance fund contributions; — order the Ombudsman to pay her the amount of EUR 50 000 as compensation for non-pecuniary loss suffered; — order the Ombudsman to pay the costs.

45 The Ombudsman contends that the Court should: — dismiss the action; — order the applicant to pay the costs.

46 In the reply, the applicant requested, by way of measures of organisation of procedure and measures of inquiry, that the Court order — the Ombudsman to produce the documents contained in the inspection file and the letters of 24 May and 31 May 2007 concerning the extension of the validity of the list of suitable candidates in Competition EUR/A/151/98 which had included her name; — the appearance of Mr Diamandouros, the European Ombudsman at the time when the application was lodged; — the examination of Ms A. and Ms B. from the Ombudsman’s services and of Mr C., Ms P., Ms H. and Mr S. from the Parliament’s services in order to clarify the content of the files submitted by the Parliament’s staff to the Ombudsman’s representatives during the inspection on 15 May 2007.

47 By letter of 25 April 2012, the applicant made a request to the Court to be able to lodge documents obtained in Case F‑9/12, Staelen v Parliament, pending before the Civil Service Tribunal, as new evidence in the present case. That request was granted by decision of the President of the First Chamber of 23 May 2012. By decision of the President of the First Chamber of 19 June 2012, the documents to which that request related and the letter of 6 June 2012 accompanying their submission were placed in the case-file, except for the Parliament’s defence in Case F‑9/12.

48 On 23 October 2012, the applicant requested the Court to ask the Parliament and the Ombudsman to produce two e-mails concerning the return to the Parliament of copies of certain documents which had been in the Ombudsman’s possession since his inspection in May 2007. In response to that request, the Ombudsman submitted the two e-mails in question to the Registry of the General Court. By decision of the President of the First Chamber of 21 November 2012, those e-mails were placed in the case-file.

49 By letter of 19 December 2012, the applicant submitted new evidence to the Registry of the General Court and requested the adoption of measures of organisation of procedure with reference to recent developments in Case F‑9/12. By decision of the President of the First Chamber of 24 January 2013, that letter and its annexes were placed in the case-file.

50 On 11 July 2013, the Civil Service Tribunal delivered its judgment in Case F‑9/12, in which it ordered the Parliament, first, to compensate material loss assessed ex aequo et bono at EUR 10 000 by reason of the applicant’s loss of earnings from her inclusion on the list of suitable candidates as a result of the Parliament’s conduct and, second, to compensate the non-material loss suffered by the applicant, which was fixed ex aequo et bono at EUR 5 000 (judgment of 11 July 2013 in CC v Parliament, F‑9/12, ECR-SC, EU:F:2013:116, paragraphs 124 and 128).

51 Following a change in the composition of the Chambers of the General Court by decision of 17 September 2013 (OJ 2013 C 313, p. 2), the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was accordingly allocated.

52 On 28 August 2013, the applicant lodged an appeal against the judgment in CC v Parliament, cited in paragraph 50 above (EU:F:2013:116) (see Case T‑457/13 P).

53 On 6 November 2013, the applicant requested, by way of measures of inquiry, the appearance of Ms O’Reilly, who succeeded Mr Diamandouros in the post of European Ombudsman, on the ground that it was important to ascertain her position on the wrongful acts committed by her predecessor and to what extent she accepted or condemned them.

54 Upon hearing the Report of the Judge-Rapporteur, the General Court (Fourth Chamber) decided to request the parties to reply to certain written questions and decided to open the oral procedure. The parties replied to those written questions within the prescribed period. In addition, the parties presented oral argument and answered the oral questions put by the Court at the hearing on 9 April 2014.

Law

I – Admissibility

55 As a preliminary point, the Court notes that it has jurisdiction, under Article 268 TFEU and the second paragraph of Article 340 TFEU, in the case of an action for damages against the Ombudsman (judgments of 23 March 2004 in Ombudsman v Lamberts, C‑234/02 P, ECR, EU:C:2004:174; 10 April 2002Lamberts v Ombudsman, T‑209/00, ECR, EU:T:2002:94, paragraph 52, and 24 September 2008M v Ombudsman, T‑412/05, EU:T:2008:397, paragraph 39).

56 However, the Ombudsman expresses doubts as to the applicant’s interest in bringing proceedings on the ground that in the present action she is challenging the insufficient scope of the Ombudsman’s own-initiative inquiry when she was strongly opposed to that inquiry. In addition, the Ombudsman states that no final decision has been taken on when and how the Parliament informed the other institutions, bodies, offices and agencies that the applicant’s name had been added to the list of suitable candidates in Competition EUR/A/151/98. He considers that he could still reopen his inquiry in this regard. Consequently, he believes that the present action is premature.

57 In the applicant’s view, she has an interest in bringing proceedings in view of the closure of the two inquiries conducted by the Ombudsman by decisions finding that there had been no instances of maladministration on the part of the Parliament.

58 The Court considers that the fact that the applicant was opposed to the Ombudsman’s own-initiative inquiry does not allow her interest in bringing proceedings in this case to be called into question. Even though that inquiry was conducted without the applicant’s agreement or support, the applicant does have an interest in bringing proceedings for compensation for any loss she suffered following or in connection with the inquiry, as in this case the question of the applicant’s conduct in respect of the inquiry cannot have a bearing on the assessment of the admissibility of the action.

59 It should also be noted that 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 (judgment of 28 April 1971 in Lütticke v Commission, 4/69, ECR, EU:C:1971:40, paragraph 6, and order of 21 June 1993 in Van Parijs and Others v Council and Commission, C‑257/93, ECR, EU:C:1993:249, paragraph 14). 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 (see, to this effect, judgments of 10 July 1985 in CMC and Others v Commission, 118/83, ECR, EU:C:1985:308, paragraphs 29 to 31; 15 September 1994KYDEP v Council and Commission, C‑146/91, ECR, EU:C:1994:329, paragraph 26, and 15 June 1999Ismeri Europa v Court of Auditors, T‑277/97, ECR, EU:T:1999:124, paragraph 61).

60 The admissibility of the present action for damages cannot therefore be affected by the fact that the Ombudsman has not yet taken a final decision on certain aspects covered by his own-initiative inquiry.

61 Consequently, the action must be declared admissible.

II – Substance

A – Introduction

62 The applicant claims that the necessary conditions for establishing the European Union’s non-contractual liability are met in the present case. With regard to the unlawfulness of the Ombudsman’s conduct, the applicant relies on four pleas in law in support of her action.

63 By the first plea in law, the applicant alleges that the Ombudsman infringed Article 3(1) of Decision 94/262/ECSC, EC, Euratom of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15) and Articles 5 and 9.2 of the Implementing provisions adopted by the Ombudsman pursuant to Article 14 of Decision 94/262 (‘the Implementing provisions’) in so far as, following the complaint and in his own-initiative inquiry, he failed to make all the necessary inquiries to establish the existence of a case of maladministration on the part of the Parliament in the handling of her case.

64 By the second plea in law, the applicant claims that the Ombudsman made several manifest errors of assessment such as to cause her loss in examining the justification for the complaint and following that examination.

65 By the third plea in law, the applicant considers that the Ombudsman was not impartial, did not act with good faith, objectivity and independence and misused his powers in the examination of the complaint and following that examination.

66 By the fourth plea in law, the applicant claims that in the inquiries initiated by him following the complaint the Ombudsman breached the principles of the duty of care and good administration and the ‘reasonable time’ principle and infringed Articles 14 and 17 of the European Code of Good Administrative Behaviour adopted pursuant to the resolution of the European Parliament of 6 September 2001 (OJ 2001 C 72, p. 331, ‘the Code of Good Behaviour’) and Article 41 of the Charter of Fundamental Rights of the European Union.

67 The Ombudsman denies each of these four pleas in law and considers that the applicant’s action should be dismissed as unfounded.

B – The case-law on the European Union’s non-contractual liability

68 It is settled case-law that the non-contractual liability of the European Union within the meaning of the second paragraph of Article 340 TFEU for unlawful conduct on the part of its organs depends on fulfilment of a set of conditions, namely the unlawfulness of the conduct alleged against the institution, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see, to this effect, judgments of 29 September 1982 in Oleifici Mediterranei v EEC, 26/81, ECR, EU:C:1982:318, paragraph 16; 9 November 2006Agraz and Others v Commission, C‑243/05 P, ECR, EU:C:2006:708, paragraph 26; and 2 March 2010Arcelor v Parliament and Council, T‑16/04, ECR, EU:T:2010:54, paragraph 139 and the case-law cited).

69 Given the cumulative nature of those conditions, the action must be dismissed in its entirety where one of those conditions is not satisfied (see judgment in Arcelor v Parliament and Council, cited in paragraph 68 above, EU:T:2010:54, paragraph 140 and the case-law cited).

70 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 (judgments of 4 July 2000 in Bergaderm and Goupil v Commission, C‑352/98 P, ECR, EU:C:2000:361, paragraphs 42 and 43, and 9 September 2008FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, ECR, EU:C:2008:476, paragraph 173). Thus, a wrongful act by an institution giving rise to such a sufficiently serious breach alone is capable of establishing the liability of the European Union.

71 In relation to the requirement that there must be a sufficiently serious breach, the decisive criterion for establishing that a breach of Union law is sufficiently serious is whether the EU institution concerned manifestly and gravely disregarded the limits on its discretion. It is solely where that institution has only considerably reduced, or even no, discretion, that the mere infringement of Union law may suffice to establish the existence of a sufficiently serious breach (see judgments of 10 December 2002 in Commission v Camar and Tico, C‑312/00 P, ECR, EU:C:2002:736, paragraph 54 and the case-law cited, and Arcelor v Parliament and Council, cited in paragraph 68 above, EU:T:2010:54, paragraph 141 and the case-law cited). The discretion available to the institution concerned therefore plays a determining role in establishing the existence of such a sufficiently serious breach (see, to this effect, judgment of 12 July 2005 in Commission v CEVA and Pfizer, C‑198/03 P, ECR, EU:C:2005:445, paragraph 66 and the case-law cited).

72 Thus, where the Ombudsman has discretion, only where he manifestly and gravely disregarded the limits on his discretion can there be a sufficiently serious breach of Union law which can establish the liability of the European Union. By contrast, where, in the exercise of his functions, the Ombudsman has only considerably reduced, or even no, discretion, the mere infringement of Union law may be sufficient to establish the existence of such a sufficiently serious breach (see, to this effect, judgment in M v Ombudsman, cited in paragraph 55 above, EU:T:2008:397, paragraph 143).

73 As regards the requirement that the rule of law must be intended to confer rights on individuals, it follows from case-law that the requirement is satisfied where that rule creates an advantage which could be defined as a vested right, is designed for the protection of the interests of individuals or entails the grant of rights to individuals, the content of those rights being sufficiently identifiable (see judgment of 19 October 2005 in Cofradía de pescadores ‘San Pedro de Bermeo’ and Others v Council, T‑415/03, ECR, EU:T:2005:365, paragraph 86 and the case-law cited). It also follows from the case-law that that condition is satisfied where the rule of law breached, while referring essentially to interests of a general nature, also ensures the protection of the individual interests of the persons concerned (see judgment of 16 May 2013 in Gap granen & producten v Commission, T‑437/10, EU:T:2013:248, paragraph 22 and the case-law cited).

74 In the present case it must therefore be ascertained whether the Ombudsman committed the alleged unlawful acts in handling the applicant’s complaint and during the subsequent own-initiative inquiry. If the Ombudsman did commit unlawful acts, it must be ascertained whether they gave rise to a sufficiently serious breach of rules of law intended to confer rights on individuals.

C – The alleged unlawful acts

1. The unlawful acts constituting infringements of Article 3(1) of Decision 94/262, Articles 5 and 9.2 of the Implementing provisions, and breaches of the principles of the duty of care and good administration

a) Preliminary remarks

75 In the first plea in law, the applicant claims that the Ombudsman infringed Article 3(1) of Decision 94/292 and Articles 5 and 9.2 of the Implementing provisions in so far as, in handling the complaint and in his own-initiative inquiry, he failed to make all the necessary inquiries to identify and to clarify the case of maladministration which she had reported. In the first ground for complaint in the fourth plea in law, she claims a breach of the principles of the duty of care and good administration on the same grounds. These grounds for complaint should be dealt with together.

76 First, it should be noted that, as has already been ruled, the Ombudsman enjoys 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 (see, to this effect, judgments in Ombudsman v Lamberts, cited in paragraph 55 above, EU:C:2004:174, paragraphs 50 and 52, and M v Ombudsman, cited in paragraph 55 above, EU:T:2008:397, paragraph 143). Consequently, only where he has manifestly and gravely disregarded the limits on his discretion as regards the merits of complaints and the way in which he deals with them can there be a sufficiently serious breach of Union law which can establish the liability of the European Union. The same holds where the Ombudsman assesses the existence of cases of maladministration into which he has conducted an own-initiative inquiry.

77 In addition, with regard to the exercise of the Ombudsman’s powers of investigation, under Article 3(1) of Decision 94/262 the Ombudsman must, following a complaint or on his own initiative, conduct all the inquiries ‘which he considers justified’ to clarify any suspected maladministration in the activities of Union institutions and bodies. Article 4.1 of the Implementing provisions stipulates that the Ombudsman decides whether there are sufficient grounds to justify making inquiries into an admissible complaint. In addition, Article 5 of those provisions defines the powers of investigation held by the Ombudsman, stating that the Ombudsman ‘may’, inter alia, request Union institutions and bodies to supply information or inspect the file of the institution or the bodies concerned. Under Article 9.2 of those provisions, the Ombudsman’s powers of investigation when conducting own-initiative inquiries are the same.

78 Thus, under Article 3(1) of Decision 94/262 and Articles 4.1, 5 and 9.2 of the Implementing provisions, the Ombudsman also has discretion regarding the initiation and the scope of the inquiries to be conducted and regarding the investigation instruments to be used in the handling of a complaint or in an own-initiative inquiry.

79 Accordingly, in the light of the case-law mentioned in paragraph 70 et seq. above, only where he has manifestly and gravely disregarded the limits on his power of inquiry conferred by Article 3(1) of Decision 94/262 and by Articles 4.1, 5 and 9.2 of the Implementing provisions can there be a sufficiently serious breach capable of establishing the liability of the European Union.

80 However, the Ombudsman must exercise his discretion in relation to the inquiry in accordance with higher-ranking rules of Union law.

81 Article 41(1) of the Charter of Fundamental Rights, which establishes a right to good administration, provides that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. Article 41(2) of the Charter states that that right includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions.

82 The word ‘includes’ in that latter provision shows that the right to good administration is not confined to the three abovementioned guarantees. This is also clear from the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), according to which Article 41 is based on the existence of the Union as subject to the rule of law whose characteristics were developed in the case-law which enshrined inter alia good administration as a general principle of law.

83 The Explanations relating to the Charter of Fundamental Rights refer in particular to the case-law according to which, 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 (see, to this effect, judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14; 6 November 2008Netherlands v Commission, C‑405/07 P, ECR, EU:C:2008:613, paragraph 56; and 9 September 2011Dow AgroSciences and Others v Commission, T‑475/07, ECR, EU:T:2011:445, paragraph 154).

84 It should be stated in this regard that 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 European Union Courts 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 European Union Courts to ascertain whether the elements of fact and of law on which the exercise of that broad discretion depends were present (see, to this effect, judgments of 15 October 2009 in Enviro Tech (Europe), C‑425/08, ECR, EU:C:2009:635, paragraphs 47 and 62; 11 September 2002Pfizer Animal Health v Council, T‑13/99, ECR, EU:T:2002:209, paragraphs 166 and 171; and 16 September 2013ATC and Others v Commission, T‑333/10, ECR, EU:T:2013:451, paragraph 84).

85 Consequently, the discretion conferred on the Ombudsman 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. It follows that, although the Ombudsman is free to decide to initiate an inquiry and that, 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 (see, by analogy with the Commission’s duty to investigate a complaint, judgment of 17 May 2001 in IECC v Commission, C‑450/98 P, ECR, EU:C:2001:276, paragraph 57). 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.

86 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 within the meaning of the case-law mentioned in paragraph 70 above (see, to this effect, judgment of 11 July 2007 in Schneider Electric v Commission, T‑351/03, ECR, EU:T:2007:212, paragraphs 117 and 118).

87 It should also be stated, however, that not every irregularity committed by the Ombudsman constitutes a breach of the principle of diligence as defined in paragraph 83 above. 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, to this effect, judgment of 12 July 2001 in Comafrica and Dole Fresh Fruit Europe v Commission, T‑198/95, T‑171/96, T‑230/97, T‑174/98 and T‑225/99, ECR, EU:T:2001:184, paragraph 144).

88 Second, with regard to the requirement that the rule of law which is alleged to have been breached must be intended to confer rights on individuals, it should be stated that, according to case-law, the condition relating to protective nature was satisfied where the rule of law breached, while referring essentially to interests of a general nature, also ensured the protection of the individual interests of the persons concerned (see paragraph 71 above). With regard to the principle of diligence or the right to good administration, that principle and that right clearly have a protective nature vis-à-vis individuals (see, to this effect, judgments of 18 September 1995 in Nölle v Council and Commission, T‑167/94, ECR, EU:T:1995:169, paragraph 76, and 9 July 1999New Europe Consulting and Brown v Commission, T‑231/97, ECR, EU:T:1999:146, paragraph 39). The same is true of the rules governing inquiries 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 inquiries conducted in that regard by the Ombudsman (see, to this effect, judgment in Ombudsman v Lamberts, cited in paragraph 55 above, EU:C:2004:174, paragraph 56).

b) The unlawful acts constituting infringements of Article 3(1) of Decision 94/262 and Articles 5 and 9.2 of the Implementing provisions and breaches of the principles of the duty of care and good administration in the inquiries concerning the decision of 22 October 2007

Introduction

89 In the first part of the first plea in law, the applicant complains that the Ombudsman committed unlawful acts in the examination of the complaint which culminated in the decision of 22 October 2007.

The existence of unlawful acts

90 First, the applicant complains that the Ombudsman did not press the Parliament to obtain certain documents held by the Parliament which he had not received. In order to assess this ground for complaint, reference should be made to the following facts.

91 On 30 June 2007, following the complaint, the Ombudsman decided to investigate the following claims and allegations: ‘[t]he Parliament did not properly treat the [applicant’s] request after her inclusion on the [list of suitable candidates in Open Competition EUR/A/151/98]’ and ‘[t]he [applicant] should be treated fairly in the context of filling a vacancy within the Community institutions’.

92 In the context of that inquiry, the Ombudsman decided to inspect the Parliament’s files in relation to the following points: ‘1. whether, after the [applicant’s] name was added to the list [of suitable candidates in Competition EUR/A/151/98] (on 17 May 2005), the Parliament recruited French-language administrators with the status of officials or members of the temporary staff included on other lists [of suitable candidates]; 2. if so, whether the [applicant’s] file was considered (and in what way); in this regard, I wish to have access, in particular, to the relevant reasoned decisions on recruitments (including the notes de fin d’affichage (notes comparing the candidates’ skills and aptitudes)); 3. whether the other Community institutions were informed of the Parliament’s decision to include the [applicant] on the list [of suitable candidates in Competition EUR/A/151/98] after that list had been exhausted (following the recruitment of all the candidates on the list) and by what means; 4. the Parliament appears to claim that the list [of suitable candidates] to which the [applicant] was added (in May 2005) was sent to all the DGs and that she also appeared in the summary of lists in force which are sent to the DGs each year.’

93 According to the inspection report, the Parliament’s representatives made observations on each of the documents contained in the ‘files’ prepared for the inspection. However, those observations are not reproduced in the report. Furthermore, the ‘files’ in question contained the following documents: ‘1. list of persons recruited as administrators by the Parliament ... since 1 May 2005; 2. document entitled ‘pooling’ distributed by EPSO, which indicated the number of candidates remaining on the lists [of suitable candidates] for all the competitions organised by the various EU institutions ...; 3. e-mail sent by the Parliament to the Council, to which the [applicant’s] curriculum vitae and candidature were attached; 4. list of all recruitments by the Parliament since May 2005 (grade AD 5); 5. list of all recruitments by the Parliament since May 2005 (senior grade); 6. list of all recruitments of francophones by the Parliament since May 2005 (grade AD 5); 7. document entitled ‘Review of lists [of suitable candidates] for EP competitions’; 8. list of temporary staff occupying permanent posts in the Parliament.’

94 All these documents were classed as confidential during the administrative procedure. However, in the rejoinder, the Ombudsman enclosed a copy of the EPSO document of 14 May 2007 entitled ‘Reserve pooling of successful competition candidates’ (the ‘pooling’ document of 14 May 2007), certain confidential sections of which were blackened out. In that document, it is stated, with regard to Competition EUR/A/151/98, for the field entitled ‘FR Administrator’, that a list of suitable candidates had been drawn up on 12 January 2000 and that just one person remained on that list. In addition, in the proceedings before the Civil Service Tribunal in Case F‑9/12, the applicant received from the Parliament all the documents contained in those ‘files’. On 6 June 2012, the applicant produced those documents in the present proceedings.

95 The applicant notes that, further to the request made in the context of her first three questions reproduced in paragraph 92 above, the Ombudsman did not obtain the information notes concerning the inclusion of her name on the list of suitable candidates in Competition EUR/A/151/98. She alleges that the Ombudsman failed to press the Parliament in order to obtain them.

96 It should be noted in this regard that the Ombudsman did not expressly request access to the information notes in question. He asked ‘whether the other Community institutions were informed of the Parliament’s decision to include the [applicant’s name] on the list [of suitable candidates in Competition EUR/A/151/98] after that list had been exhausted (following the recruitment of all candidates on the list) and by what means’. The Parliament was therefore able to show by any available means that it had informed the other institutions of its decision to include the applicant on that list of suitable candidates. It cannot therefore be alleged that the Ombudsman failed to press specifically to obtain those information notes. Consequently, this ground for complaint raised by the applicant must be rejected as unfounded.

97 The applicant also alleges that the Ombudsman did not have the notes de fin d’affichage which he had requested from the Parliament.

98 It should be pointed out in this regard that, under point 2 of the measures of inquiry taken by the Ombudsman on 30 June 2007 (see paragraph 92 above), the Ombudsman stated that it was only if the Parliament had recruited French-language administrators with the status of officials or members of the temporary staff on other lists of suitable candidates after the applicant’s name had been added to the list of suitable candidates in Competition EUR/A/151/98 that it was important for him to have access to the relevant reasoned decisions on recruitments, including the notes de fin d’affichage. It follows that, in the absence of any recruitment of French-language administrators like the applicant by the Parliament, the second measure of inquiry became redundant.

99 It is not disputed that during the inspection the Parliament provided the Ombudsman with lists, first, of persons recruited as administrators by the European Parliament since 1 May 2005, second, of all recruitments by the Parliament since May 2005 (grade AD 5), third, of all recruitments by the Parliament since May 2005 (senior grade) and, fourth, of all recruitments of francophones by the Parliament since May 2005 (grade AD 5). Those lists were produced by the applicant in the present case on 6 June 2012. On the basis of those lists, the Ombudsman concluded, in the decision of 22 October 2007, that from May 2005 the Parliament had only recruited French-language administrators with specialised fields of interest. The applicant neither claimed nor demonstrated following the communication of those lists that the Ombudsman’s assessment was incorrect. Consequently, the Ombudsman cannot be reproached for not pressing to obtain those notes de fin d’affichage.

100 Second, the applicant considers that the assessment contained in point 2.5 of the decision of 22 October 2007 is based on an inquiry which was closed without the necessary checks having been carried out and is incorrect.

101 It should be pointed out in this regard that in point 2.5 of the decision of 22 October 2007, the Ombudsman took the following view: ‘Furthermore, the inspection confirmed the information already provided by the Parliament in its opinion, namely that the reserve list indicating the [applicant’s] availability had been made available to other Community institutions. Furthermore, the inspection confirmed that, upon request, his CV had been sent to the service requesting information on him, namely, to the Council ...’

102 First, the applicant alleges that the Ombudsman wrongly claimed that the Parliament had stated in its opinion of 22 March 2007 that the list of suitable candidates which included her name had been made available to other institutions. That allegation is well founded. The Parliament did not state in that opinion that the list of suitable candidates had been made available to other institutions. The Ombudsman acknowledges that this is the case and that he made an error in this respect. That error consisted in distorting the content of a document, which constitutes a failure to exercise diligence in the investigation of the case and, in particular, in the consideration of a fact which the Ombudsman himself deemed relevant.

103 Second, the applicant alleges that the Ombudsman closed the inquiry despite the fact that the inspection file did not contain any evidence that the relevant list of suitable candidates had been made available to other EU institutions, bodies, offices or agencies. According to the applicant, the ‘pooling’ document of 14 May 2007 relied on by the Ombudsman did not prove that the list of suitable candidates was made available to other institutions before that date.

104 It should be borne in mind that the Ombudsman had decided to inspect the Parliament’s files in order, inter alia, to ascertain ‘whether the other Community institutions [had been] informed of the Parliament’s decision to include the [applicant’s name] on the list of suitable candidates [in Competition EUR/A/151/98] after that list had been exhausted (following the recruitment of all the candidates on the list) and by what means’ (see paragraph 92 above). In addition, the parties confirmed at the hearing that the applicant’s name was placed on that list on 17 May 2005. On that date, as the applicant claims in the complaint, all the other successful candidates in Competition EUR/A/151/98 had been recruited. Thus, the Ombudsman sought to ascertain whether the other EU institutions, bodies, offices and agencies had been informed of the Parliament’s decision of 17 May 2005 to include the applicant’s name on that list and by what means.

105 In response to that question, the Parliament provided the Ombudsman with a list contained in the ‘pooling’ document of 14 May 2007. It is clear from that list that on 14 May 2007 the name of just one candidate remained on the list of suitable candidates in Competition EUR/A/151/98. Since all the other successful candidates in that competition had been recruited before 17 May 2005, the Ombudsman should have deduced from that document that on 14 May 2007 the applicant was the only candidate whose name remained on that list. Because the ‘pooling’ document of 14 May 2007 could be consulted by the other EU institutions, bodies, offices and agencies, they were able to determine, at least on 14 May 2007, that the applicant was the last successful candidate whose name was on that list of suitable candidates.

106 However, as the Ombudsman acknowledges in the defence, the ‘pooling’ document of 14 May 2007 does not indicate when and how the inclusion of the applicant’s name on the list of suitable candidates in Competition EUR/A/151/98 was communicated by the Parliament to the other EU institutions, bodies, offices and agencies.

107 In his inspection decision, the Ombudsman expressly stated that he wished to inspect the Parliament’s file in order to ascertain whether the other EU institutions, bodies, offices and agencies had been informed of the Parliament’s decision to include the applicant’s name on the list of suitable candidates in Competition EUR/A/151/98 after it had been exhausted and by what means.

108 In addition, the response to the question when and how the EU institutions, bodies, offices and agencies were informed that the applicant’s name had been placed on the list of suitable candidates in Competition EUR/A/151/98 constitutes one of the relevant elements covered by the Ombudsman’s inquiry into whether, in its management of the applicant’s file after that listing, the Parliament was responsible for a case of maladministration. Since the validity of the list initially expired on 1 June 2007 and the communication of that list by the Parliament to the other EU institutions, bodies, offices and agencies could help to improve the applicant’s prospects of being recruited, the Parliament’s failure to communicate the list to the other EU institutions, bodies, offices and agencies as soon as possible after the applicant’s name had been placed on the list on 17 May 2005 could constitute a case of maladministration, irrespective of the existence of an express provision in the applicable legislation requiring such communication.

109 Consequently, by failing, in his inquiry, to investigate when and how the inclusion of the applicant’s name on the list of suitable candidates in Competition EUR/A/151/98 had been communicated by the Parliament to the other EU institutions, bodies, offices and agencies, the Ombudsman failed to fulfil his duty of diligence in examining whether and how the EU institutions, bodies, offices and agencies had been informed that the applicant’s name had been placed on that list between 17 May 2005 and 14 May 2007, that is to say during much of the period of validity of that list.

110 That conclusion cannot be called into question by the various arguments put forward by the Ombudsman.

111 With regard to the argument that the inspection report does not necessarily contain an exhaustive list of all the documents in the file, but indicates only the documents of which the Ombudsman’s representatives had received a copy, it should be stated that in the decision of 22 October 2007 the Ombudsman did not state that he had requested those other documents or refer to them. Furthermore, the Ombudsman has not produced them during the proceedings even though the burden of proof rests with him, as he relies on them to justify that decision. Lastly, the Ombudsman acknowledges that that file did not include other documents, as he stated in the defence that ‘[the] absence, in the Parliament’s file, of letters or e-mails informing the other institutions could be explained by the fact that that information had been communicated orally’. Consequently, the Ombudsman’s argument cannot call into question the finding that following his inquiry he did not have all the relevant elements necessary to be able properly to assess the existence of a case of maladministration.

112 With regard to the argument that in a letter of 26 April 2007 EPSO had informed the applicant that ‘during the meetings which [it held] regularly with the recruitment officers of the different [i]nstitutions, they systematically exchange[d] information on the status of their own lists of suitable candidates and often ma[de] successful candidates available to the others’, it should be noted that in the decision of 22 October 2007 the Ombudsman did not mention that practice. Moreover, it cannot be inferred from that statement when the other EU institutions, bodies, offices and agencies were informed that the applicant’s name had been placed on the list of suitable candidates in Competition EUR/A/151/98. Therefore, even if that practice of communicating orally were proven, the Ombudsman still could not simply rely on that fact in this case to conclude that the Parliament had informed the other EU institutions, bodies, offices and agencies of the applicant’s availability in good time.

113 Lastly, on the basis of the various ‘pooling’ documents which the Ombudsman enclosed with his reply to a written question asked by the Court, it should be noted that the information on the inclusion of the names of the successful candidates in Competition EUR/A/151/98 on the list of suitable candidates in that competition communicated in the ‘pooling’ documents drawn up by EPSO is not wholly reliable. Thus, it is common ground that the applicant’s name was placed on the list on 17 May 2005 and it is apparent from the Parliament’s documents produced by the Ombudsman during these proceedings that, of the 22 initially successful candidates in that competition, all were recruited before 31 December 2002 except for one who was recruited on 1 June 2003. Despite the fact that in February 2003 there was just one successful candidate from that competition whose name was still on that list, the EPSO document of 3 February 2003 states that the names of six successful candidates were still included on the list on that date. Similarly, in January 2005, no names of any successful candidates from the competition in question still appeared on the list in question. However, according to the EPSO document of 26 January 2005, there were still two names of successful candidates on the list on that date. Lastly, after 17 May 2005 only the applicant’s name still appeared on the list in question. Nevertheless, the EPSO document of 12 December 2005 states that there were still two names of successful candidates on the relevant list.

114 Third, the applicant challenges the assessment set out in point 1.1 of the decision of 22 October 2007 closing the inquiry into the complaint. The applicant considers that the Ombudsman was wrong not to investigate the inconsistent position of the Parliament which, on the one hand, rejected her spontaneous candidatures and, on the other, stated that she could send spontaneous candidatures to all the institutions.

115 With regard to this ground for complaint, the following factors should be borne in mind.

116 Under Article 2(4) of Decision 94/262, a complaint to the Ombudsman must be preceded by the appropriate administrative approaches to the institutions and bodies concerned.

117 In this case, following a request for information sent by the applicant to the Parliament regarding the procedure to be followed in applying for vacancies, the Parliament informed her, in a letter of 5 January 2006, that where vacant posts were to be filled, it was necessary in turn to consider, first, whether the post could be filled by transfer or appointment by way of promotion within the institution concerned and then requests for transfer or whether to hold an internal competition, and that it was only after these possibilities had been exhausted that the list of suitable candidates from an open competition could be consulted. In addition, the Parliament stated that the candidatures of successful candidates in open competitions for vacancies displayed in summary form were automatically rejected as inadmissible.

118 In the complaint, the applicant stated that ‘[she had] contacted the Parliament in order to ascertain the procedure to follow in order to obtain an appointment’ and that ‘[i]t [had] informed [her] that if [she applied for] vacant posts, [her] candidature would be automatically rejected, as officials and successful candidates from internal competitions had priority (see the Parliament’s letter of 5 January 2006, Annex 3)’. She then complained that she had not been offered a single post and stated that it was her conviction that she had been a victim of the Parliament’s vindictiveness.

119 In its opinion following the complaint, the Parliament stated that the applicant could send spontaneous candidatures to all the institutions.

120 Lastly, in point 1.1 of the decision of 22 October 2007, the Ombudsman held: ‘The [applicant] made a comment in [her] observations that [she] was informed by a Parliament official that [she] was not entitled to apply for Parliament’s internal vacancies ... In so far as this comment is to be understood as a new allegation, the Ombudsman points out that the complainant did not make prior administrative approaches to Parliament in this regard ... For that reason, the Ombudsman will not deal with this comment in his decision on the present complaint.’

121 In view of these considerations, it should be noted that the Parliament’s alleged inconsistent conduct stems from a position taken by the Parliament after the applicant lodged the complaint. The applicant was not therefore able to report that conduct in the complaint, less still to make the appropriate administrative approaches to the Parliament before reporting that position in the complaint in accordance with Article 2(4) of Decision 94/262. This finding is confirmed by the fact that neither in her complaint against the Parliament of 14 November 2006 nor in the complaint did the applicant call into question the Parliament’s implementation of Article 29 of the Staff Regulations of Officials of the European Union in the version thereof applicable to the present case (‘the Staff Regulations’), to the effect that the list of suitable candidates in an open competition may be consulted by the institutions only after the exhaustion of these possibilities of transfer, appointment by way of promotion within the institution concerned, requests for transfer or the possible holding of an internal competition.

122 Consequently, the Ombudsman did not err in taking the view, in point 1.1 of the decision of 22 October 2007, that the alleged inconsistency claimed by the applicant was a new allegation and that it was not preceded by the appropriate administrative approaches to the Parliament. The failure to investigate that inconsistency cannot therefore constitute an infringement of Decision 94/262, the Implementing provisions or the principle of diligence.

123 Fourth, the applicant alleges that the Ombudsman commended the Parliament for extending the validity of the list of suitable candidates on which her name appeared without any concern at the fact that there had been no response to her request for an extension or at the possibility of consultation of the Council.

124 It should be borne in mind that the validity of the list of suitable candidates which included the applicant’s name expired on 1 June 2007. On 15 May 2007, the applicant applied to the Secretary-General of the Parliament for an extension of the validity of that list. On 6 June 2007, the Parliament’s services replied to that letter. They stated that, at the Ombudsman’s request, the Secretary-General of the Parliament had requested the initiation of the procedure for the extension of the validity of the list of suitable candidates in Competition EUR/A/151/98 until 31 August 2007. On 17 July 2007, the Secretariat of the Parliament informed the applicant that, at the Ombudsman’s request and pending the outcome of his examination of her case, the Secretary-General of the Parliament had decided to extend the validity of the list until 31 August 2007. Lastly, in point 2.6 of the decision of 22 October 2007, the Ombudsman stated: ‘Finally, in reference to the [applicant’s] letter of 21 May 2007, containing the information that [she] had contacted Parliament’s Secretary-General ... on 15 May 2007 in order to request that the validity of the reserve list [in Competition EUR/A/151/98] be extended, the Ombudsman [recalled] that, in a previous complaint, the Ombudsman held that the choice made by the appointing authority of the date on which a reserve list is to expire is a decision that falls within the discretionary powers of the administration. In this regard, the Ombudsman [commended] Parliament’s willingness to extend the validity of the reserve list in question in order to make it possible for him to complete his inquiry on the present case.’

125 Having regard to the content of the Parliament’s letter of 6 June 2007, it is wrong to claim that the Parliament failed to respond directly to the request for an extension of the validity of the list of suitable candidates made by the applicant in her letter of 15 May 2007. The Parliament’s letter of 6 June 2007 expressly stated that it was in reply to the applicant’s letter of 15 May 2007. The fact that the Parliament’s letter also indicated that it was at the Ombudsman’s request that the procedure for the extension of the validity of the list of suitable candidates until 31 August 2007 had been initiated does not mean that there was no response to the applicant’s request for an extension. The Parliament’s letter must be understood as a response to the requests made by both the applicant and the Ombudsman to extend that period. In any event, the Court observes that the complaint did not relate to the question whether the Parliament had committed an act of maladministration by failing to respond expressly to the applicant’s request to extend the validity of the list of suitable candidates on which her name appeared. Consequently, it cannot be alleged that the Ombudsman failed to investigate these questions following the complaint. Lastly, the extension by the Parliament of the validity of the list of suitable candidates in question until the Ombudsman had completed his inquiry does not seem improper having regard to the requirements of good administration.

126 The applicant also claims the existence of an extension of the validity of the list of suitable candidates without any consultation of the Council. However, the applicant does not explain that allegation adequately. In any event, that question was not part of the object of the complaint. Therefore, it cannot be alleged that the Ombudsman failed to investigate that question following that complaint.

127 Fifth, the applicant alleges that the Ombudsman did not properly investigate, following the complaint, whether she had been discriminated against compared with the other successful candidates in Competition EUR/A/151/98 by reason of the fact that the period for which her name was included on the list of suitable candidates in that competition was shorter than for the other successful candidates.

128 It should be pointed out in this regard that in the complaint the applicant did not claim that she was discriminated against on the ground that the period of validity for which her name was included on the list of suitable candidates in Competition EUR/A/151/98 was shorter than for other successful candidates in the same competition. She submitted that since she was placed on that list, no institution had offered her a post and she had been a victim of the Parliament’s vindictiveness on account of the legal actions which she had brought against the Parliament. In addition, she explained that she wanted to obtain ‘an appointment or at least to compete fairly for vacancies in all the European institutions’. Lastly, she requested the Ombudsman to open an inquiry ‘into maladministration in the management of [her] file on the list of suitable candidates in Competition EUR/A/151/98’.

129 In his letter of 30 January 2007, the Ombudsman requested the Parliament to send him an opinion on the following allegation and request: ‘The [applicant] considers that the Parliament has not handled her case properly, [following the inclusion] of her name [on the list of suitable candidates in Competition EUR/A/151/98]’ and ‘the [applicant] requests that she be treated fairly in connection with the filling of vacancies within the Community institutions’.

130 In its opinion, the Parliament stated that the applicant had not established facts from which it was possible to infer the existence of direct or indirect discrimination compared with the other successful candidates in Competition EUR/A/151/98. In her observations on the Parliament’s opinion, the applicant did not challenge that assessment. The inspections by the Ombudsman also did not relate to the discrimination claimed by the applicant in paragraph 127 above (see paragraph 92 above).

131 In her e-mail of 28 August 2007 sent to the Ombudsman’s case-handler, the applicant stated: ‘As you [know], the Parliament ... [had] agreed to extend the list of suitable candidates [in] Competition EUR/A/151/98 only at your request (mine having been implicitly rejected). The extension granted [was] for only three months (two months of which [fell] within the holiday period), whereas it [seemed] to me that it had extended the initial list for a longer period. According to the Parliament ..., the purpose of that period [was] only to allow you to conclude the inquiry which you [had] conducted.’

132 In the light of these considerations, the applicant cannot allege that the Ombudsman failed, following the complaint, to investigate whether she had been discriminated against compared with the other successful candidates in Competition EUR/A/151/98 by reason of the fact that the period for which her name was included on the list of suitable candidates in that competition was shorter than for the other successful candidates in that competition. That complaint did not contain any such allegation. This is confirmed by the fact that, in her response to the Parliament’s opinion, the applicant did not challenge the Parliament’s view that she had not established facts from which it was possible to infer the existence of direct or indirect discrimination compared with the other successful candidates in that competition.

133 Furthermore, in so far as the ground for complaint raised by the applicant concerns the extension of the validity of the list of suitable candidates in Competition EUR/A/151/98 by only three months whereas the validity of the initial list of suitable candidates had been extended for a longer period (see the e-mail of 28 August 2007 reproduced in paragraph 130 above) or it was customary to extend the validity of lists of suitable candidates for an open competition for a longer time (see the letter of 19 October 2007), it should be noted that, since the decision to extend the validity of the list of suitable candidates which included the applicant’s name was taken by the Parliament in June 2007, it could not be the object of the complaint. It cannot therefore be alleged that the Ombudsman failed to investigate that question following that complaint. In addition, it does not appear that the questions raised by the applicant with the Ombudsman in her abovementioned correspondence had been raised with the Parliament. Lastly, the applicant’s vague allegations claiming that the validity of the list had been extended for a longer period for the initially successful candidates in that competition and that it was customary to extend the validity of lists of suitable candidates for an open competition for a longer time are not substantiated. Consequently, it cannot be complained that the Ombudsman failed to investigate those allegations specifically. The ground for complaint alleging a failure to exercise diligence set out in paragraph 127 above must therefore be rejected.

134 Sixth, the applicant considers that the inspection file did not contain any proof that the list of suitable candidates which included her name had been circulated to all the Parliament’s DGs with the result that the Ombudsman had wrongly relied solely on the Parliament’s claims in this regard.

135 In its opinion of 20 March 2007, the Parliament stated that the lists of suitable candidates had been circulated to all the Parliament’s DGs and that a summary of those currently valid lists and of the number of successful candidates available on each list had been sent each year to the DGs. Furthermore, the Ombudsman stated in the course of his inquiry that he wished to inspect the Parliament’s files in relation to the fact that ‘[t]he Parliament seem[ed] to claim that the list of suitable candidates to which [the applicant’s name] ha[d] been [added] (in May 2005) ha[d] been sent to all DGs and that [it] [was] also included in the summary of the lists in force sent to the DGs each year’.

136 In her observations on the Parliament’s opinion of 20 March 2007, the applicant stated that the Parliament had not provided any evidence to corroborate its claims that the list of suitable candidates in Competition EUR/A/151/98 had been circulated within its DGs.

137 Lastly, in point 2.4 of the decision of 22 October 2007, the Ombudsman explained that ‘on the basis of his inspection of the Parliament’s relevant file, ... the [applicant’s] candidature [had] been made available to all [DGs] within the Parliament’.

138 In the light of these considerations, the statement made by the Ombudsman in point 2.4 of the decision of 22 October 2007, as reproduced in paragraph 137 above, is not accompanied by any specific reference to supporting documents despite the fact that, in her comments on the Parliament’s opinion, the applicant had stressed the need for the Parliament’s position to be corroborated by evidence.

139 Moreover, the Ombudsman has not produced any evidence in this regard in his written submissions to the Court. He has simply stated that the letter giving notification of the inspection made clear that it concerned the lists in force sent to the DGs each year and that the conclusion in point 2.4 of the decision of 22 October 2007 was reached in the light of the results of the inspection to the effect that ‘[a]ll [these factors suggested] therefore that [its] representatives ... had actually seen, during the inspection conducted by them, documents confirming that the Parliament had informed its services that the [a]pplicant’s name had been added to the list [of suitable candidates] concerned’.

140 Having regard to the above findings, it must be acknowledged that the Ombudsman failed to fulfil his duty of diligence in his inquiry in relation to the notification of all the Parliament’s DGs that the applicant’s name had been placed on the list of suitable candidates in Competition EUR/A/151/98. The failure to exercise diligence in conducting that inquiry is shown by the fact that the Ombudsman can substantiate the assessment contained in point 2.4 of the decision of 22 October 2007 only by a supposition based on documents whose nature or content he is not able to clarify.

The existence of a sufficiently serious breach

141 In the light of the foregoing, the Ombudsman committed three unlawful acts in his examination of the complaint.

142 First, the Ombudsman distorted the content of the Parliament’s opinion (see paragraph 102 above). That distortion stems from a failure to exercise diligence in investigating the case, which constitutes a sufficiently serious breach of Union law to establish the liability of the European Union. The Ombudsman does not enjoy discretion in describing the content of a document.

143 Second, the Ombudsman failed to fulfil his duty of diligence in his examination of the Parliament’s circulation to the other EU institutions, bodies, offices and agencies of the information that the applicant’s name had been placed on the list of suitable candidates. He does not demonstrate that he investigated and had in his possession the relevant elements to determine if, when and how the list of suitable candidates in question had been circulated to the other EU institutions, bodies, offices and agencies between 17 May 2005 and 14 May 2007 (see paragraph 109 above). In accordance with the case-law cited in paragraph 86 above, this failure to fulfil the duty of diligence constitutes a sufficiently serious breach capable of establishing the liability of the European Union.

144 Third, the Ombudsman failed to fulfil his duty of diligence in his examination of the Parliament’s circulation to its DGs of the information that the applicant appeared on the list of suitable candidates (see paragraph 140 above). He has not demonstrated that he investigated and had in his possession the relevant elements to assess the circulation of that information. In accordance with the case-law cited in paragraph 86 above, this failure to exercise diligence constitutes a sufficiently serious breach capable of establishing the liability of the European Union.

145 Since the unlawful acts found in paragraphs 142 to 144 above are capable of establishing the liability of the European Union, the recharacterisation of the circumstances underlying these unlawful acts as also constituting infringements of Article 3(1) of Decision 94/262 and of Articles 5 and 9.2 of the Implementing provisions will not affect the finding of unlawful acts capable of establishing the liability of the European Union.

Conclusion

146 In the light of the above considerations, it must be concluded that the Ombudsman failed in three instances to fulfil his duty of diligence following the investigation of the complaint and that those failures are capable of establishing the liability of the European Union.

c) The unlawful acts constituting infringements of Article 3(1) of Decision 94/262 and Articles 5 and 9.2 of the Implementing provisions and breaches of the principles of the duty of care and good administration in relation to the decision of 31 March 2011

147 In the second part of the first plea in law, the applicant claims that the Ombudsman made several errors in his own-initiative inquiry which establish the liability of the European Union.

148 First, the applicant alleges that the Ombudsman did not verify the veracity of one of the Parliament’s statements regarding the content of the Parliament’s official register of correspondence.

149 More specifically, in points 77 and 87 of the decision of 31 March 2011 the Ombudsman explained that the Parliament had stated that communications between institutions concerning a particular candidate were, as a rule, not recorded in the official register. According to the Ombudsman, there was no reason to doubt the correctness of that information.

150 According to the applicant, the Ombudsman could not rely on that statement by the Parliament without verification, since, in her view, any official correspondence between institutions is normally recorded in the official register of correspondence and all letters which she had received from the Parliament bore a letter number corresponding to the official register and not to an internal number.

151 It is the opinion of the Court in this regard that the fact that all the letters which the applicant received from the Parliament bore a number from the official register does not give reason to cast doubt on the veracity of the Parliament’s statement that correspondence between institutions concerning a candidate was not recorded in the official register of correspondence. Correspondence between the institutions and a candidate is by nature official whilst that is not necessarily the case for correspondence between institutions concerning a candidate. In addition, the object of the Ombudsman’s own-initiative inquiry was not the proper maintenance of registers of correspondence by the Parliament, but the Parliament’s circulation of the list of suitable candidates which included the applicant’s name to the other EU institutions, bodies, offices and agencies. Given the object of the inquiry, the Parliament’s statement that it did not have any records in the official register of correspondence between the institutions concerning a particular candidate was potentially unfavourable to it, which increases its credibility. In view of these considerations, the applicant has not put forward sufficient evidence to show that the Ombudsman had failed to fulfil his duty of diligence by relying on the Parliament’s statement that there was no record of communications between it and the institutions concerning the applicant in the Parliament’s official register of correspondence.

152 That conclusion is not called into question by the fact that the Parliament’s practice of not recording the communications between institutions concerning the applicant may be contrary to Article 24 of the Code of Good Behaviour. The compatibility of that practice with that Code was not the object of the Ombudsman’s inquiry in this case and the applicant did not lodge a complaint in this regard with the Ombudsman. In addition, that question of compatibility cannot cast doubt on the Parliament’s statement that the communications in question were not recorded in a register.

153 Second, the applicant complains that after opening his own-initiative inquiry the Ombudsman refused to investigate whether the Parliament informed the other institutions that her name had been placed on the list of suitable candidates in Competition EUR/A/151/98. In this regard it is not disputed that in the course of the Ombudsman’s own-initiative inquiry the applicant objected to the continuation of that inquiry (see letter of 10 July 2010).

154 In addition, in the decision of 31 March 2011 the Ombudsman first found that inquiries should not be undertaken on the ground that the applicant objected to them. He then stated that in the context of an own-initiative inquiry he could make inquiries of his own motion without the applicant’s consent if an overriding public interest so required. He nevertheless considered that that was not the situation in this case as he had opened his own-initiative inquiry mainly with the interest of the applicant in mind. In view of these circumstances, he held that the position adopted by the applicant prevented his continued investigation and that he should not proceed with the inquiry (see points 89 to 94 of the decision of 31 March 2011).

155 Having regard to these grounds set out in the decision of 31 March 2011, it should be noted, first of all, that in the context of an own-initiative inquiry the Ombudsman was not required of his own motion to cease an investigation where a person concerned by that investigation objected to it. As the applicant states, 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 this is justified by an overriding public interest.

156 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.

157 In this case, the applicant does not contest either the fact that she objected to the Ombudsman’s own-initiative inquiry or the fact that that inquiry had no particular public interest to justify it. The Court holds that the Ombudsman did not manifestly and gravely disregard the limits on his discretion in relation to inquiries by relying on the applicant’s objection to the measures of inquiry in order to close that own-initiative inquiry. However, by closing that own-initiative inquiry without assessing whether the Parliament had committed acts of maladministration in connection with the notification of its services and of other EU institutions, bodies, offices and agencies that the applicant’s name had been placed on the list of suitable candidates in Competition EUR/A/151/98, the Ombudsman failed to rectify, through that inquiry, certain errors which he had made in the inquiry into the complaint and the decision of 22 October 2007. The Ombudsman cannot therefore rely on the conduct of an own-initiative inquiry in order to exempt the European Union from its liability for the errors made by him in the inquiry into the complaint.

158 In so far as the applicant alleges that the Ombudsman did not investigate the Parliament’s failure to consult the Council (see point 96 of the decision of 31 March 2011), the Ombudsman was also able to justify that failure to investigate by the applicant’s objection to those measures of inquiry.

159 Lastly and in any event, the Court holds that, even if the view were taken that the Ombudsman wrongly refused to investigate because the applicant objected, the applicant could no longer, in accordance with the maxim of nemini licet venire contra factum proprium, rely on that error in order to claim compensation from the Union. The applicant may not, without contradicting herself, claim compensation for a failure by the Ombudsman to conduct an own-initiative inquiry because she objected to such an inquiry. This assessment does not affect the fact that it is not possible for the Ombudsman to rely on the conduct of an own-initiative inquiry to exempt the Union from its liability for the unlawful acts which he committed in the inquiry into the complaint and the decision of 22 October 2007.

160 For the above reasons, all the grounds for complaint raised by the applicant in the second part of the first plea in law must be rejected.

d) Conclusion

161 Further to the analysis of the first plea in law, it must be ruled that the Ombudsman committed three unlawful acts capable of establishing the liability of the European Union, as summarised in paragraph 146 above.

2. The unlawful acts constituting manifest errors of assessment

a) Introduction

162 In the second plea in law, the applicant essentially alleges that the Ombudsman made manifest errors of assessment in connection with the decisions of 22 October 2007 and 31 March 2011 which establish the liability of the European Union. The Ombudsman denies that he made those errors.

b) The citation of the Parliament’s opinion in the decision of 22 October 2007

163 The applicant recharacterises the ground for complaint set out in paragraph 102 above as a manifest error of assessment. For the reasons given in paragraphs 102 and 142 above, the unlawful act in question establishes the liability of the European Union.

c) The rectification of the decision of 22 October 2007

164 The applicant considers that the Ombudsman made an error, manipulated and misrepresented the facts and is guilty of the criminal offence of forgery by rectifying, on 29 June 2010, point 2.5 of the decision of 22 October 2007 without publishing a corrigendum.

165 With regard to these grounds for complaint, the Court states, first, that although it 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.

166 Second, the Court notes that in the decision of the Ombudsman of 29 June 2010, which was addressed to the Parliament and a copy of which was received by the applicant, the Ombudsman had indicated the need to correct the decision of 22 October 2007 because of the error in point 2.5 of that decision, which distorted the content of the Parliament’s opinion (see paragraph 102 above). Thus, in the decision of 29 June 2010, the correction to be made was explicitly explained to the applicant and to the Parliament. The applicant cannot therefore claim an unjustified manipulation or a falsification of the decision of 22 October 2007.

167 That correction was then made public by the Ombudsman, who published an amended version of the decision of 22 October 2007, which contains the correction adopted by the decision of 29 June 2010. That amended version of the decision of 22 October 2007 replaced the incorrect initial decision of 22 October 2007. The applicant was thus informed of that correction with full transparency.

168 Consequently, the non-publication of a corrigendum does not constitute an error, less still a falsification of the decision of 22 October 2007. The ground for complaint put forward by the applicant must therefore be rejected.

d) The making available of the list of suitable candidates to the other institutions

169 First, the applicant alleges that, in essence, the Ombudsman, did not recognise as a case of maladministration the fact that the Parliament had not published her name in the Official Journal as a successful candidate in Competition EUR/A/151/98 even though on 25 February 2003 the Parliament had accepted the Ombudsman’s recommendation to publish the names of the successful candidates in the competition.

170 It should be noted in this regard that this non-publication was not expressly criticised by the applicant in the complaint. Consequently, the Ombudsman could not be required, on the basis of that complaint, to investigate a possible case of maladministration on the part of the Parliament in this regard.

171 Furthermore, following a written question from the Court, the Ombudsman produced the recommendation which he had made to the Parliament on 11 December 2002 concerning the publication in the Official Journal of the names of the successful candidates in the competition and the letter from the President of the Parliament, dated 25 February 2003, accepting that recommendation. It is clear from that recommendation that it relates to competitions subsequent to its adoption and that candidates must be informed in the competition notice of the fact that the names of successful candidates will be published.

172 Since the competition in which the applicant participated had been published on 2 March 1999, before the Parliament accepted the abovementioned recommendation and the competition notice for Competition EUR/A/151/98 did not state that the names of successful candidates would be published, the Ombudsman could not have complained that the Parliament failed to adhere to his recommendation which it had accepted on 25 February 2003. If the Ombudsman had considered that the Parliament had committed an act of maladministration by not publishing the applicant’s name in the Official Journal following her inclusion on the list of suitable candidates in Competition EUR/A/151/98, he would not have ensured compliance with one of the requirements laid down in his recommendation, namely that all candidates had to be informed of the publication of the names of successful candidates in the competition notice.

173 Lastly, moreover, the Court points out that the names of the other 22 successful candidates in Competition EUR/A/151/98 were not published in the Official Journal. The applicant does not put forward any argument to show that she should benefit from greater publicity than the other 22 successful candidates. In those circumstances, in accordance with both the principle of equal treatment and the fair treatment demanded by the applicant herself in the complaint, just as for the other successful candidates in that competition, the list of suitable candidates in the competition which included the applicant’s name was not published in the Official Journal.

174 For the above reasons, the Court considers that the Ombudsman was correct in his view that the Parliament had not committed an act of maladministration by not publishing the applicant’s name in the Official Journal as a successful candidate in Competition EUR/A/151/98.

175 Second, the applicant considers that the Ombudsman made several errors by relying on the ‘pooling’ document of 14 May 2007 to show that the other EU institutions and bodies had access to the information concerning the applicant’s availability.

176 First, according to the applicant, the Ombudsman made an error by failing to verify the validity of the Parliament’s claim that the ‘pooling’ document of 14 May 2007 was confidential. According to the applicant, that document was not confidential.

177 It should be noted in this regard that the Ombudsman had access to the full version of the ‘pooling’ document of 14 May 2007 in the context of his inquiry (see the inspection report). However, the Parliament requested that that document be treated as confidential, to which the Ombudsman agreed. The applicant did not therefore have access to that document during the administrative procedure which culminated in the decisions of 22 October 2007 and 31 March 2011. However, in the course of the present judicial proceedings, the Ombudsman produced a version of the ‘pooling’ document of 14 May 2007, certain parts of which were blackened out.

178 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.

179 In the light of the above considerations, it was 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 was not for the Ombudsman to challenge a request made by a complainant for confidential treatment of a complaint.

180 Consequently, the Ombudsman did not make an error by not challenging the request for confidential treatment of the Parliament’s documents.

181 Nevertheless, where, in a decision, the Ombudsman bases his assessment on confidential information and a complainant challenges the lawfulness of that decision before a European Union Court, 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 Courts of the European Union shall undertake an examination of the lawfulness of the contested decision solely on the basis of the material which has been disclosed (see, to this effect, judgment of 18 July 2013 in Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, ECR, EU:C:2013:518, paragraph 127).

182 Next, the applicant considers that, in essence, the Ombudsman erred in basing his assessment in the decision of 22 October 2007 on the ‘pooling’ document of 14 May 2007 when that document did not prove that the information contained in the document had been made available to all the EU institutions, bodies, offices and agencies before or after 14 May 2007.

183 By this ground fo