Case C-234/02 P: Appeal brought on 24 June 2002 by the European Ombudsman against the judgment delivered on 10 April 2002 by the Third Chamber of the Court of First Instance of the European Communities in Case T-209/00 between F. Lamberts and the European Ombudsman
Date: 2002-07-27
Institutions: Court of Justice
Subjects: European Ombudsman, action for annulment (EU), administrative responsibility, indemnification, infringement of EU law

27.7.2002

EN

Official Journal of the European Communities

C 180/19

The applicant claims that the Court should:

— annul the decision whereby the Commission concluded
with the United States of America guidelines on legislative
cooperation and transparency;

— order the Commission to pay the costs.

Appeal brought on 24 June 2002 by the European
Ombudsman against the judgment delivered on 10 April
2002 by the Third Chamber of the Court of First Instance
of the European Communities in Case T-209/00 between
F. Lamberts and the European Ombudsman

(Case C-234/02 P)

(2002/C 180/33)

Pleas in law and main arguments

— Despite the careful language of the document attached to
a memorandum which the Commission sent to Com-
mittee 133, responsible for the common commercial
policy, matters of substance lead the French Government
to think that the guidelines are a genuine undertaking
and place obligations on the parties. In those guidelines
are very precisely set out the objectives pursued, the
scope of action and the measures to adopt in order to
achieve the objectives set. The fact that those guidelines
are not, of themselves, intended to modify the state of
Community law cannot disguise the fact
they
constitute, at the very least, an undertaking to cooperate
on the part of the parties. Moreover, the provisions under
Title VI of
the guidelines, regarding monitoring of
their implementation, clearly demonstrate the mandatory
nature of the cooperation undertaking entered into by
the parties. The existence of a surveillance mechanism is
witness to the fact that the authors of the guidelines
clearly sought to rule out the parties seeking refuge
behind the voluntary nature of the cooperation to negate
the undertaking to which they had subscribed.

that

Since those guidelines must be seen as an international
agreement within the meaning of Article 300 EC, the
measure whereby the Commission decided to enter into
it is vitiated by lack of competence and cannot but be
annulled.

— The guidelines are also contrary to the EC Treaty inas-
much as they amount to a restriction of the sole power
to propose which the Commission enjoys in the context
of the Community legislative process and they affect the
whole of the legislative process.

An appeal against the judgment delivered on 10 April 2002
by the Third Chamber of the Court of First Instance of the
European Communities in Case T-209/00 between F. Lamberts
and the European Ombudsman was brought before the Court
of Justice of the European Communities on 24 June 2002 by
the European Ombudsman represented by J. Sant’Anna, with
an address for service in Luxembourg.

The appellant claims that the Court should:

— annul the decision concerning the admissibility of the
action for damages in the judgment of the Court of First
Instance delivered on 10 April 2002 in Case T-209/00
Frank Lamberts v European Ombudsman and thus declare
that that action is inadmissible.

Pleas in law and main arguments

Breach of Community law

The decision at issue contravenes the constitutional scheme
established by the Treaty, concerning the liability of the
Ombudsman. In reviewing the legality of the inquiry procedure
conducted by the Ombudsman and of the decision closing the
case, the Court of First Instance overstepped the limits of
judicial review of action by the Ombudsman. It carried out a
review of the Ombudsman’s exercise of his mandate, a review
which the treaties assign to the European Parliament and
which had already been carried out by that institution.

In declaring the case admissible the Court of First Instance
failed to distinguish between actions for damages, on the one
hand, and actions for annulment and actions for failure to act,
on the other. The Ombudsman does not in the least deny that
it is open to a citizen to bring an action for damages against
the Ombudsman on the ground of
the latter’s possibly
wrongful action or behaviour causing damage to the former.
However, whilst the Court of First Instance rightly found that
the Treaty confers on citizens a right to submit complaints to
the Ombudsman and to receive an answer from him, it was
wrong to conclude that it could review the Ombudsman’s

C 180/20

EN

Official Journal of the European Communities

27.7.2002

inquiries and their conclusions in order to assess whether there
was any fault underlying the damage caused to the citizen.
There is no common constitutional tradition of submitting the
inquiries and findings of ombudsmen to judicial review. On
the contrary,
in the nordic countries, where the office of
ombudsman originated, such review is excluded on consti-
tutional grounds based on the respective powers and functions
of the courts and ombudsmen.

In carrying out a review of the duty to inform the complainant,
the value of documents received within certain time-limits,
compliance with procedural time-limits and the validity of the
Ombudsman’s conclusions following the inquiry into the
possibility of friendly solutions, the Court of First Instance has
called into question the distinction between actions for
annulment and for failure to act, on the one hand, and the
action for damages, on the other. In agreeing to carry out a

review of the legality of the entire procedure and conclusions
of the Ombudsman’s inquiry, the Court of First Instance opens
up the possibility of numerous actions for annulment, or
even actions for failure to act, being brought against the
Ombudsman in the guise of alleged actions for damages.

On the facts of the present case it should be acknowledged
that, although brought against the Ombudsman, the action for
damages clearly sought compensation for damage caused by
the action of the European Commission, which had been the
subject of the citizen’s complaint to the Ombudsman. In
holding that that action was admissible although the damage
the citizen complained of was a matter for the institution
concerned by the complaint
Instance
must have considered that the purpose of the Ombudsman’s
inquiries is to protect the interests of injured citizens who have
suffered damage as a result of the wrongful conduct of the
institutions, which is not the case.

the Court of First