Case T-412/05: Action brought on  18 November 2005  —  M  v Ombudsman
Date: 2006-02-25
Institutions: Court of First Instance
Subjects: European Ombudsman, European official, civil liability proceedings, confidentiality, indemnification, operation of the Institutions, rights of the defence

25.2.2006

EN

Official Journal of the European Union

C 48/35

Pleas in law and main arguments

Pleas in law and main arguments

The applicant, of Finnish nationality, was appointed an official
the Commission on 1 October 2004. The Commission
of
refused to grant him the expatriation allowance, considering
that during the reference period, from 1 January 1999 to 31
December 2004, the applicant was living in Belgium.

The applicant contests that decision, claiming that the period
from 1 April 2003 to 31 December 2003, during which he
worked in Brussels as scientific advisor at the Academy of
Finland, should not be taken into account since the Academy
does not have a distinct legal personality but is part of the
Finnish State. On that basis, the applicant pleads infringement
of the first paragraph of Article 4 of Annex VII to the Staff
Regulations, and an error of law.

Action brought on 18 November 2005 — ‘M’ v
Ombudsman

(Case T-412/05)

(2006/C 48/69)

Language of the case: French

Parties

Applicant(s): ‘M’ (Brussels, Belgium) (represented by: G. Vander-
sanden, lawyer)

Defendant(s): European Ombudsman

Form of order sought

The applicant(s) claim(s) that the Court should:

— hold that

the European Community has incurred non-
contractual liability under the second paragraph of Article
288 EC as a result of wrongful acts or omissions committed
by the European Ombudsman in the performance of his
duties, specifically as a result of the publication of his
report 1288/99/OV wrongfully naming the applicant, and
as a result of the European Ombudsman's negligence in
investigating the matter and the incorrect conclusions he
arrived at;

— consequently, order the European Community, represented
by the European Ombudsman, to pay the applicant by way
of compensation for professional and non-material damage
and for damage to his health a sum provisionally assessed
at EUR 150 000, without prejudice to any subsequent
amendment in the course of the proceedings;

— order the European Community, represented by the Euro-

pean Ombudsman, to pay the costs.

By complaint brought before the European Ombudsman, a
group of citizens sought a finding that there had been an
instance of maladministration within the Commission in its
handling of a complaint lodged by those citizens against their
national authorities. By decision issued on 18 July 2002, the
Ombudsman found that there had been an instance of malad-
ministration and unfair treatment of the complaint on the part
of the Commission.

The purpose of the present action, which has been brought by
an official of the Commission unit responsible for handling the
complaint at issue, is to seek compensation for damage alleg-
edly suffered by the applicant as a result of his having been
named in person in Decision 1288/99/OV and alleged negli-
gence by the European Ombudsman in his investigation of the
complaint and in the conclusions he arrived at in that decision.
The applicant contends that after
the decision had been
published he was named in a press release issued by the Euro-
pean Ombudsman, and this was reproduced in various newspa-
pers and on internet websites, which caused him to suffer
damage. In the applicant's view, the damage allegedly suffered
is especially serious as he holds an important position and the
the European Ombudsman's decision could
publication of
seriously undermine his professional integrity.

The applicant bases his claim on the second paragraph of
Article 288 EC, establishing the non-contractual liability of the
European Community, which, according to the applicant, has
been incurred in the present case as a result of the allegedly
wrongful conduct on the part of the Ombudsman.

the applicant alleges that,

In support of his claim,
in the
present case, the Ombudsman committed a serious breach of
his duties by naming individuals — including the applicant —
in person in his report in breach of the principles of confidenti-
ality and proportionality insofar as the publication of the appli-
cant's name was not, in the applicant's view, absolutely neces-
sary and could not be justified by any exception to the general
rule of confidentiality (1).

the

that

claims

conduct

applicant

Moreover,
the
Ombudsman and his staff constitutes a breach of the audi
alterem partem principle, which forms a fundamental element of
the right to a fair hearing. He also submits that it is forbidden
to make an adverse judgment on a natural or legal person in a
report that is to be published after general disclosure and is to
be widely circulated.

of

Lastly, the applicant also claims that, in adopting the decision
at issue, the Ombudsman made an incorrect assessment of the
facts and based himself on inadequate information.

(1) In support of his claim, the applicant relies, inter alia, on Case C-
315/99 P ISMERI-EUROPA v Court of Auditors [2001] ECR I-5281.