CELEX: 62002CC0234
Language: en
Date: 2003-07-03 00:00:00
Title: Opinion of Mr Advocate General Geelhoed delivered on 3 July 2003. # European Ombudsman v Frank Lamberts. # Appeal - Inadmissibility - Non-contractual liability - European Ombudman's manner of dealing with a complaint concerning an internal competition for establishment. # Case C-234/02 P.

OPINION OF ADVOCATE GENERALGEELHOEDdelivered on 3 July 2003(1)
         Case C-234/02 PEuropean Ombudsmansupported byEuropean ParliamentvFrank Lamberts
            (Appeal  –  Non-contractual liability  –  European Ombudsman’s manner of dealing with a complaint concerning an internal competition)
            
      
         
      I –  Introduction
        1.        This case concerns the appeal brought by the European Ombudsman against the judgment of the Court of First Instance in Lamberts v European Ombudsman. 
         			(2)
         		 In that case the Court of First Instance declared admissible a citizen’s application for damages concerning the European
      Ombudsman’s action in the performance of his duties. It subsequently rejected the application as unfounded.
      
      
        2.        The European Ombudsman requests the Court to annul the judgment of the Court of First Instance on the point of admissibility.
      The citizen concerned, Mr Lamberts, asks the Court to confirm the judgment as regards admissibility and to grant the merits
      of the application at first instance.
      
      
        3.        In order to assess the admissibility of the application at first instance, a more detailed examination must be made of the
      status and powers of the Ombudsman appointed by the European Parliament on the basis of Article 195 EC, including review of
      his conduct.
      
      
      II –  Legal framework
        4.        Pursuant to Article 21(2) EC every citizen of the Union may apply to the Ombudsman established in accordance with Article
      195. Article 195 EC provides as follows:
      
      ‘1.        The European Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of the Union or any natural
      or legal person residing or having its registered office in a Member State concerning instances of maladministration in the
      activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance
      acting in their judicial role.
       In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative
      or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged
      facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration,
      he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of
      its views. The Ombudsman shall then forward a report to the European Parliament and the institution concerned. The person
      lodging the complaint shall be informed of the outcome of such inquiries.
      
       The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.
      
       2.       … The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils
      the conditions required for the performance of his duties or if he is guilty of serious misconduct.
      
       3.        The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall
      neither seek nor take instructions from any body. The Ombudsman may not, during his term of office, engage in any other occupation,
      whether gainful or not. …’
      
      
        5.        On 9 March 1994 Parliament adopted, pursuant to Article 195(4) EC, Decision 94/262/ECSC, EC, Euratom on the regulations and
      general conditions governing the performance of the Ombudsman’s duties. 
         			(3)
         		
      
        6.        Under Article 14 of Decision 94/262 the Ombudsman is authorised to adopt the implementing provisions for that Decision. He
      adopted the implementing provisions on 16 October 1997 and they came into force on 1 January 1998. The text of the provisions
      was published in all the official EU languages on the Ombudsman’s website. 
         			(4)
         		
      
        7.        The substance of the provisions of Decision 94/262 which are relevant to this case are set out in full in the disputed judgment
      of the Court of First Instance (paragraphs 6 to 15).
      
      
        8.        The action before the Court of First Instance was brought on the basis of Article 235 EC, under which the Court of Justice
      has jurisdiction in disputes relating to compensation for damage provided for in the second paragraph of Article 288 EC. The
      second paragraph of Article 288 provides: ‘In the case of non-contractual liability, the Community shall, in accordance with
      the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its
      servants in the performance of their duties’.
      
      
      III –  Facts
        9.        The essence of this case is as follows. Mr Lamberts took part in an internal competition at the Commission for the establishment
      as officials of members of the temporary staff in Grade A. He failed the oral test and attributes that failure to the fact
      that, during that test, he was under the influence of medication capable of causing fatigue and reducing his ability to concentrate.
      He had been prescribed that treatment following an accident which had occurred some weeks prior to the oral test. He had not
      requested a postponement of his oral test owing to a clause in the document inviting him to attend that test, which essentially
      said that the time of the test could not be changed. 
      
      
        10.      He subsequently applied to the European Ombudsman, who dealt with the complaint, but not to Mr Lamberts’s satisfaction. Mr
      Lamberts’s proposal for a friendly settlement with the Commission was rejected by the Commission. The Ombudsman did, however,
      make a critical remark regarding the Commission's general administrative practice.
      
      
        11.      Thereafter, in the interest of good administrative conduct, the Commission included a special clause in all letters of invitation
      to oral tests informing candidates that the date indicated might be changed in exceptional circumstances. However, the Ombudsman
      concluded, with reference to Mr Lamberts, that that change in policy had no effect on past procedures.
      
      
        12.      For a more detailed description of the facts of the case I will refer now to the disputed judgment of the Court of First Instance.
      
      
      IV –  The disputed judgment
        13.      The Court of First Instance first considers the admissibility of the application (paragraphs 48 to 60 of the judgment). It
      refers to the case-law of the Court, which essentially states that under Article 235 EC in conjunction with Article 288 EC
      action may be brought against any Community body in connection with non-contractual liability for actions carried out by a
      body in the performance of its duties. The Court concludes that the action is admissible.
      
      
        14.      The Court also points out, among other things, that review of the Ombudsman by the Community judicature must be limited in
      view of the very wide discretion which he enjoys. However, it cannot be excluded that a manifest error by the Ombudsman may
      cause damage to the citizen concerned. The Court also points out that Article 235 EC constitutes an autonomous form of action
      in Community law.
      
      
        15.      The application is dismissed (paragraphs 61 to 89 of the judgment) because of Mr Lamberts’s failure to show that the Ombudsman
      committed any breach of his administrative duties in dealing with his complaint. The Court reaches that conclusion on the
      basis of its assessment of five of the arguments adduced by Mr Lamberts.
      
      
        16.      First, Mr Lamberts alleged that the Ombudsman should have advised him of the possibility of bringing an action before the
      Court of First Instance against the Commission’s decision. In the Court of First Instance’s view, however, it is up to the
      citizen to choose which is the best remedy for him. That is particularly true of a Community member of staff, who must be
      regarded as familiar with the arrangements for bringing an action before the Court of First Instance. The Ombudsman may advise
      a citizen on this point, but there is no provision of Community law requiring him to do so.
      
      
        17.      Second, the applicant complains that the Ombudsman failed to demonstrate impartiality and objectivity in dealing with his
      complaint, in that the Ombudsman took the Commission’s opinion into account even though the English version of that opinion
      (English being the language in which the applicant had made the complaint) had been submitted after the time-limit set by
      the Ombudsman. Furthermore, the English version of the opinion was different from the French version originally submitted.
      The Court of First Instance observes here that the time-limit set for an institution to submit an opinion to the Ombudsman
      need not be seen as absolute, and that there is no difference between the language versions on the points that are relevant
      to the Ombudsman’s investigation.
      
      
        18.      Third, the applicant complains of the slowness with which the Ombudsman dealt with his complaint. Over 10 months elapsed between
      the Commission’s opinion and the Ombudsman’s decision, and 16 months elapsed between the complaint being submitted and the
      conclusion of the procedure. The Court of First Instance states that the relevant provisions do not specify a time-limit within
      which the Ombudsman must deal with complaints. It states, however, that the procedure before the Ombudsman must be completed
      within a reasonable time according to the circumstances of the case. Nevertheless, it must also be taken into account that
      the Ombudsman not only has to serve the individual interest of the complainant, but also has the task, in the public interest,
      of identifying and seeking to rectify instances of maladministration.
      
      
        19.      Fourth, the applicant argues that the Ombudsman is under an obligation to use his best endeavours to arrange a friendly settlement
      and satisfy the citizen concerned. The Court of First Instance recalls that the Ombudsman enjoys very wide discretion in that
      regard and therefore cannot incur non-contractual liability save where he has committed a flagrant and manifest breach of
      his obligations in that connection. The Ombudsman cannot, in principle, merely forward the opinions of the institution concerned
      to the citizen. In the present case, however, the Ombudsman examined the merits of the position taken by the Commission and
      was able, without being guilty of wrongful conduct, to conclude in his decision that there was no prospect of a friendly settlement
      acceptable to the applicant.
      
      
        20.      Fifth, the applicant contends that, by making a critical remark in his decision, the Ombudsman was in breach of Article 7
      of the implementing provisions. Under that provision the Ombudsman may only make a critical remark where the instance of maladministration
      has no general implications. The Court of First Instance states in that respect that a possible breach of that provision cannot
      harm the applicant’s interests, since it is not the aim of the provision to protect his individual interests. 
      
      
      V –  Appeal before the Court of Justice
        21.      By application of 21 June 2002 lodged at the Registry of the Court on 24 June 2002 the European Ombudsman brought the present
      appeal, claiming that the Court should:
      
        
      –
         annul the decision concerning the admissibility of the action for damages in the judgment of the Court of First Instance;
      
      
        
      –
         declare that that action is inadmissible.
      
      
      
      
        22.      By application of 29 August 2002 lodged at the Registry of the Court on 2 September 2002 Mr Lamberts lodged a reply contending
      that the Court should: 
      
        
      –
         dismiss the appeal; 
      
      
        
      –
         set aside the judgment of the Court of First Instance with regard to the merits of the claim brought at first instance and
            accordingly: 
         
      
      
        
      –
         principally:
      
      
        
      –
         order the Ombudsman to pay him an amount of EUR 2 468 787 by way of damages in respect of material and financial damage and
            an amount of EUR 124 000 by way of damages in respect of non-material damage, together with interest to be determined by the
            Court until full payment, 
         
      
      
        
      –
         order the Ombudsman to pay the costs of the proceedings, 
      
      
        
      –
         in the alternative:
      
      
        
      –
         order the Ombudsman to pay him an amount of EUR 1 234 934 by way of damages in respect of material and financial damage and
            an amount of EUR 124 000 by way of damages in respect of non-material damage, together with interest to be determined by the
            Court until full payment, 
         
      
      
        
      –
         order the Ombudsman to pay the costs of the proceedings.
      
      
      
      
        23.      On 30 August 2002 the European Parliament lodged a statement in intervention in support of the Ombudsman’s decision. On 30
      October 2002 the President of the Court ruled that statement to be admissible. 
      
      
        24.      Following an exchange of written submissions a hearing was held in the case on 13 May 2003.
      
      
      VI –  Pleas and arguments of the parties
       A – Admissibility
        25.      The Ombudsman argues in his appeal that the Court of First Instance’s decision to declare the application at first instance
      admissible and the grounds for that decision are contrary to the legislation governing the Ombudsman’s performance of his
      duties.
      
      
        26.      First of all, the disputed judgment contravenes the constitutional scheme established by the EC Treaty concerning the liability
      of the Ombudsman.
      
      
        27.      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. This was a case where the applicant
      contested the manner in which the Ombudsman had dealt with his complaint, and the Ombudsman’s conclusions. Reviewing the legality
      of the inquiry procedure, the conclusions reached and the time-limits imposed is a matter for the European Parliament, not
      the Community judicature.
      
      
        28.      In addition, Article 195(2) EC and Article 8 of Decision 94/262 provide for a procedure to be followed for the case where
      the Ombudsman is guilty of serious misconduct calling in question his capacity to perform his duties. The European Parliament
      can then apply to the Court to dismiss the Ombudsman.
      
      
        29.      Secondly, the Court of First Instance fails to distinguish between actions for damages on the one hand and actions for annulment
      or for failure to act on the other.
      
      
        30.      The Ombudsman recognises that it is open to a citizen to bring an action for damages against the Ombudsman on the ground of
      the latter’s conduct. Such an action may not relate to the inquiry procedure itself, but may concern the infringement of a
      specific obligation upon him, for instance. The Ombudsman gives as an example an infringement of the confidential treatment
      of documents or information.
      
      
        31.      According to the Ombudsman there is no common constitutional tradition whatsoever of submitting Ombudsmen’s inquiries and
      findings to judicial review. On the contrary, in the Nordic countries, where the office of Ombudsman originated, such review
      is excluded on constitutional grounds. Articles 6 and 13 of the ECHR also do not suggest any other conclusion. Complainants
      always have the right to bring judicial proceedings against a Community institution or body, and therefore do not need to
      apply to the Ombudsman and then appeal against his conclusions.
      
      
        32.      According to the case-law of the Court of First Instance the Ombudsman’s inquiries and conclusions are not subject to judicial
      review because actions cannot be brought for annulment or for failure to act. By submitting those inquiries and conclusions
      to detailed analysis in the present proceedings, the Court of First Instance nevertheless opens up the possibility of such
      judicial review, in the guise of an action for damages. The Court of First Instance carries out such an analysis despite the
      fact that it recognises that review by the judicature has to be limited.
      
      
        33.      Thirdly, the Ombudsman points out that the action for damages, although brought against the Ombudsman, relates to damage caused
      by the action of the Commission. The purpose of the Ombudsman’s inquiry is not, however, to protect the interests of injured
      citizens who have suffered damage as a result of the wrongful conduct of the institutions.
      
      
        34.      Mr Lamberts takes the view that the Court of First Instance’s decision on the question of admissibility was correct. He adduces
      the following arguments in support.
      
      
        35.      First of all, he disputes the Ombudsman’s view that his action relates to the damage he suffered as a result of the action
      of the Commission. It actually relates to the Ombudsman’s misconduct in dealing with his complaint, as the Court of First
      Instance rightly identified.
      
      
        36.      Secondly, it is to be regarded as a denial of justice that actions for damages may not be brought against the Ombudsman. For
      a body to be granted powers presupposes that that body will accept liability in the event of misconduct or if it fails to
      perform its duties. At the hearing, Mr Lamberts argued in that context that the Ombudsman is to be regarded as the representative
      of a citizen bringing a complaint. A remedy must be open to that citizen if his representative fails in the performance of
      his duties.
      
      
        37.      Judicial review of the legality of the Ombudsman’s conduct guarantees both the legitimacy of the system and legal certainty,
      even though the Treaty provides for review by the European Parliament. He refers to a letter of 17 December 1999 from the
      President of the European Parliament, informing him that Parliament cannot intervene in the Ombudsman’s internal procedures.
      The European Parliament also does not have the power to make good damage resulting from the Ombudsman’s misconduct.
      
      
        38.      Incidentally, in his reply the Ombudsman argues that the letter from the President of the European Parliament is new evidence
      which is not admissible in an appeal to the Court.
      
      
        39.      Finally, Mr Lamberts contends that admissibility cannot be assessed without also examining the substance of the case.
      
      
        40.      The European Parliament begins by examining the role of the Ombudsman in dealing with a complaint. In a complaint regarding
      maladministration the Ombudsman approaches the Community institution concerned. The citizen in question benefits only indirectly
      from this action by the Ombudsman, through the repercussions which the Ombudsman’s approach to the institution may have.
      
      
        41.      Parliament agrees with the Ombudsman’s view that the Court of First Instance failed to distinguish between actions for damages
      and actions for annulment or for failure to act. When examining the admissibility of the action the Court of First Instance
      used an interpretation far removed from the spirit and letter of the relevant Community legislation. Parliament refers in
      particular to paragraphs 57 and 59 of the contested judgment.
      
      
        42.      That interpretation could prejudice the position conferred on the Ombudsman in the Treaty, and the institutional balance.
      In particular:
      
        
      –
         the Ombudsman performs his duties entirely independently. The Treaty makes a distinction between judicial and non-judicial
            review. The type of review carried out by the Court of First Instance here is tantamount to duplication.
         
      
      
        
      –
         A review of legality by the Court of First Instance has the effect of depriving Parliament’s review of substance. Parliament
            tests every aspect of the Ombudsman’s conduct against the requirements of the EC Treaty. The ultimate element of that review
            is that Parliament alone can apply to have the Ombudsman dismissed. A dual review – political and judicial – is not provided
            for in the Treaty.
         
      
      
      
      
        43.      Parliament recognises that a citizen may bring an action for damages against the Ombudsman, which must relate to the obligations
      that Community legislation places upon the latter. The Ombudsman’s conduct must form the origin of the damage.
      
      
        44.      According to Parliament the grounds which the Court of First Instance gives concerning the principles of the compensation
      procedure are inadequate. The Court of First Instance refers to the autonomous nature of the procedure, but nevertheless tests
      the legality of the Ombudsman’s conduct without drawing the obvious conclusions from it. The Court of First Instance does
      not take account of the fact that the Ombudsman has no binding powers over the Community institutions in respect of the damage
      that the applicant has suffered. The Ombudsman’s conduct cannot result in non-contractual liability. The only conduct that
      can result in liability is the conduct of the Commission. An action for damages cannot arise from the unlawfulness of an action
      by a Community institution – in this case the Ombudsman – if that action has no effect in law.
      
      
       B – The action in the main proceedings
        45.      Mr Lamberts bases his action on a plea of breach of Community law by the Court of First Instance. First, he alleges breach
      of the obligation arising from the Statute of the Court of Justice to give grounds for judgments. Second, he alleges breach
      of Community legislation on the duties and powers of the Ombudsman, and of principles of Community law such as equality of
      treatment for officials and the obligation to base a decision on admissible grounds.
      
      
        46.      His complaint is that the Ombudsman failed to fulfil the duties conferred on him in that he:
      
        
      –
         did not advise Mr Lamberts in good time to bring an action before the Community judicature;
      
      
        
      –
         did not try to achieve a friendly settlement.
      
      
      
      
        47.      Mr Lamberts also points out that, in his appeal, the Ombudsman recognises that damage was suffered as a result of the Commission’s
      action, which should have led the Ombudsman to devote greater attention to dealing with the complaint.
      
      
        48.      In particular, Mr Lamberts further alleges that the Court of First Instance made substantial errors of appraisal. It incorrectly
      claimed that the Commission refused to allow Mr Lamberts a second oral examination, when in fact Mr Lamberts had never requested
      one. The Court of First Instance also incorrectly states that it was not until the proceedings before it that Mr Lamberts
      suggested alternative settlements. The conclusion that the Court of First Instance reaches in paragraph 84 of the disputed
      judgment, that neither the Ombudsman nor the Commission could have taken a position on those settlements, is therefore incorrect.
      
      
        49.      In his reply the Ombudsman brings a procedural defence against Mr Lamberts’s arguments. Appeals must be limited to points
      of law. Mr Lamberts, however, contests only the actual findings of the Court of First Instance. Furthermore, an application
      for appeal must precisely reproduce the critical elements of the disputed judgment, together with the legal arguments on which
      the appeal is based. In the present case, however, the appeal merely repeats the pleas and arguments already put before the
      Court of First Instance, including arguments based on facts which the Court of First Instance has already specifically dismissed.
      
      
        50.      The European Parliament agrees with the Ombudsman’s arguments.
      
      
      VII –  Status and powers of the European Ombudsman
       A – Introduction
        51.      In this section of my Opinion I shall outline the status and powers of the European Ombudsman, focusing on the following points:
      
        
      –
         Is the Ombudsman comparable with a court or tribunal, or is he a body entrusted with certain administrative powers?
      
      
        
      –
         Is the primary aim of the Ombudsman’s procedure for dealing with complaints to satisfy the complainant – an extension of the
            role of judge – or does it primarily serve the public interest in that the actions of the Community institutions are kept
            under closer scrutiny?
         
      
      
        
      –
         Review of the conduct of the Ombudsman himself. Under Community law the Ombudsman is generally accountable to the European
            Parliament, but how significant is that general accountability for the issue of whether his conduct in individual cases can
            be submitted to judicial review?
         
      
      
      
      
        52.      I feel that the status and powers of the Ombudsman need to be assessed before we can establish to what extent he can be held
      liable by the Community judicature for misconduct in the performance of his duties.
      
      
       B – Characteristics of the Ombudsman
        53.      The institution of Ombudsman has a long tradition going back to the appointment of an Ombudsman in Sweden in 1809. Since then
      the institution of Ombudsman – or a closely comparable figure – has existed in all the Member States of the European Union.
      The Ombudsman is essentially a body which examines citizens’ complaints against the government, produces reports and makes
      recommendations to the administration. His independence from the administration is guaranteed – and this applied even to the
      Swedish Ombudsman in the 19th century – by the fact that he is attached not to the executive, but to the parliament.
      
      
        54.      Since the Maastricht Treaty the EC Treaty has made provision for an Ombudsman, an organ of the European Community, in Articles
      21 and 195 EC.
      
      
        55.      The institution of Ombudsman is one of the instruments by which the Treaty gives substance to citizenship of the Union. Citizens
      of the Union have the right to complain to the Ombudsman about instances of maladministration in the actions of Community
      institutions and bodies. The Ombudsman thus plays a part in protecting citizens’ rights. It is also clearly evident from the
      background to the institution of a European Ombudsman that it was seen as one of the mechanisms for protecting the specific
      rights of European citizens. 
         			(5)
         		
      
        56.      Although the purpose of the complaints procedure before the Ombudsman is to protect citizens’ rights, it does not provide
      the same sort of legal protection as that afforded by a court or tribunal.
      
      
        57.      On that point, I would refer to the case-law of the Court on the concept of a court or tribunal within the meaning of Article
      234 EC. It is settled case-law that the Court takes account of a number of factors, such as whether the body is established
      by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. It must also be able to give judgment in proceedings intended
      to lead to a decision of a judicial nature, and it must have the power to deliver binding decisions in application of rules
      of law. 
         			(6)
         		
      
        58.      The institution of Ombudsman has most of the characteristics listed by the Court. It has its legal basis in Article 195 EC,
      it is permanent and its independent status is laid down in Article 195(3) EC.
      
      
        59.      However, the complaints procedure before the Ombudsman displays only a very few of the listed characteristics of judicial
      proceedings. The primary feature is that the Ombudsman enjoys a great deal of freedom in deciding how he examines the complaint.
      While there is provision for both the complainant and the institution complained against to be involved in the handling of
      the complaint, that is not entirely a procedure inter partes. I would refer here to Article 6 of the implementing provisions, which provides not for the Ombudsman to have a role between
      the parties, but for cooperation between the Ombudsman and the institution complained against. The most important consideration,
      however, is that the Ombudsman does not have the power to deliver decisions which are binding on the parties. The settlement
      of disputes is not an issue. The procedure is therefore designed not to settle legal disputes, but – as the Ombudsman himself
      describes it in his 1995 Annual Report – to prevent them.
      
      
        60.      In view of that absence of binding authority, it is also logical that the EC Treaty should not make provision for the right
      to appeal to the Community judicature against decisions taken by the Ombudsman as part of the complaints procedure.
      
      
        61.      From that point of view, the Ombudsman does not have the characteristics of a court or tribunal. Furthermore, while the Ombudsman
      has the power to make critical remarks as a result of a complaint, they are intended not to satisfy the complainant, but to
      serve the public interest instead. 
      
      
        62.      I would also point out here that the Ombudsman can carry out inquiries on his own initiative. The fact that he has the power
      to do so indicates that the Ombudsman is to be regarded as an administrative body, rather than as comparable to a court or
      tribunal. I would observe, however, that that power is in addition to the power to act upon complaints, rather than a second
      primary duty, as is clear from the background to the body of Ombudsman, 
         			(7)
         		 the Ombudsman’s own view that his primary duty is to deal with complaints, 
         			(8)
         		 and the operation of the Ombudsman in practice. For example, the most recent annual report available (for 2001) shows that
      the Ombudsman investigated 204 complaints and initiated inquiries himself on only 4 occasions. In many cases own-initiative
      inquiries arise from earlier complaints, suggesting that the problems raised in complaints are of a more general nature.
      
      
        63.      In short, the Ombudsman does not offer any legal protection in the proper sense. The Ombudsman is to be regarded as an administrative
      body whose task – primarily via complaints – is to identify in the public interest instances of maladministration by the Community
      institutions and to help to put an end to that maladministration. It is also appropriate for that task that the Ombudsman
      is appointed by the European Parliament and that he is required to submit to Parliament an annual report on his inquiries.
      
      
       C – The complaints procedure in detail
        64.      As I said, citizens are not given any legal protection comparable to the legal protection provided by the courts. The Ombudsman
      has largely investigative powers and he can endeavour to reach settlements. He may conclude his inquiries with a reasoned
      decision, but it can never contain more than ‘critical remarks’ and ‘recommendations’.
      
      
        65.      The procedure before the Ombudsman therefore does not take the place of the legal protection provided by the courts. I would
      point out here that Article 195 EC states that the Ombudsman may not investigate facts that are or have been the subject of
      legal proceedings. The main purpose of the procedure before the Ombudsman is to give citizens the possibility of seeking satisfaction
      in cases where judicial proceedings are not an option or would not produce an appropriate result. The Ombudsman’s procedure
      therefore supplements legal protection proper.
      
      
        66.      None of this alters the fact, however, that Community law affords complainants certain procedural rights. First of all, Article
      21 of the EC Treaty itself gives European citizens the right to lodge a complaint and the right to receive an answer in the
      language in which the complaint was made. The complainant’s procedural rights are set out in greater detail in the implementing
      provisions. If, as in the present case, an inquiry is started, the complainant has the right to inspect the opinion that the
      institution concerned forwards to the Ombudsman and the right to respond to that opinion. The Ombudsman then reaches a decision
      which – and this is the only right that the complainant has at this stage – is sent to the complainant.
      
      
        67.      That brings me to the content of the Ombudsman’s decision should he establish that an institution is guilty of maladministration.
      First and foremost (Article 6 of the implementing provisions) he must seek a friendly settlement between the complainant and
      the institution, reflecting the Ombudsman’s duty – referred to earlier – to prevent a dispute before the courts. The procedure
      is thus primarily a form of mediation. Only if a friendly settlement appears impossible can the Ombudsman use other means,
      namely critical remarks and draft recommendations. The institution may respond to the draft recommendations, after which the
      Ombudsman may send a report with recommendations to the European Parliament. The institution is not obliged to comply with
      any critical remark or recommendation.
      
      
        68.      A further element in the present case is that Mr Lamberts accuses the Ombudsman of failing to refer him to the Court of First
      Instance, as a result of which the deadline for bringing an action expired. In Community law Article 2(5) of Decision 94/262
      allows the Ombudsman to advise the person lodging the complaint to address it to another authority. Community law does not,
      however, give the complainant a specific right to be referred.
      
      
        69.      The question is – and Mr Lamberts’s action relates to this – whether the Ombudsman is, in certain circumstances, under an
      obligation to use his powers to reach a friendly settlement and to give a referral. Can his failure to use those powers be
      unlawful in respect of a complainant?
      
      
       D – Review of the Ombudsman
        70.      Article 195(3) establishes the independence of the office of Ombudsman. The essence of that independence is found in the second
      sentence, which prohibits the Ombudsman from seeking or taking instructions from any body in the performance of his duties.
      It would be contrary to the guarantees given for the Ombudsman to perform his duties under review.
      
      
        71.      I cannot agree with the opinion of the Ombudsman himself and the European Parliament that it is the task of the European Parliament
      to review the Ombudsman’s performance of his duties. Article 195 EC does not provide for such review.  Only in very exceptional
      circumstances can the European Parliament propose to the Court that the Ombudsman be dismissed, but that would not be as a
      result of a review of the Ombudsman’s performance of his duties in dealing with an individual complaint. I assume that only
      a negative assessment of his performance as a whole could lead to dismissal.
      
      
        72.      In addition – but this is not a review of his performance of his duties – the European Parliament may decide not to extend
      the Ombudsman’s term of office and to appoint a new Ombudsman upon its expiry. The fact that the Ombudsman is required to
      report to the European Parliament should also not be seen as part of a review procedure. The reporting requirements are of
      an entirely different nature. Their purpose is to enable Parliament to form a political assessment of the operation of – and
      sometimes maladministration in – the institutions. There is one further reason why it is difficult to conceive of review by
      the European Parliament: the Ombudsman also has the power to investigate maladministration in the European Parliament itself.
      
      
        73.      In conclusion, this means that the European Parliament’s claim that review by the Court of First Instance would result in
      duplication is flawed for the simple reason that Parliament itself does not conduct any review.
      
      
        74.      The Court of Justice is also not responsible for reviewing the Ombudsman’s performance of his duties, except as part of the
      dismissal procedure referred to in earlier paragraphs.
      
      
        75.      In short, the Ombudsman performs his duties independently and without review. That does not mean, however, that the legal
      consequences of specific actions by the Ombudsman cannot be subject to judicial review by the Community judicature. In that
      case it would not be a review of performance of duties, but legal protection for the individual whose interests have been
      directly affected by that action.
      
      
        76.      The EC Treaty does not allow for appeal against decisions of the Ombudsman. He is not referred to in Article 230 EC, or in
      any other provision of the Treaty or subordinate Community legislation 
         			(9)
         		 regulating the powers of the Court.
      
      
        77.      The question is whether that satisfies the principle, recognised by the Court, that individuals must genuinely be able to
      rely before the courts on the rights they derive from the Community legal order. The right to effective legal protection is,
      according to the Court, one of the general principles of law stemming from the constitutional traditions common to the Member
      States. That right has also been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights
      and Fundamental Freedoms. 
         			(10)
         		
      
        78.      As I stated earlier (see point 65), Community law grants citizens certain rights in the procedure before the Ombudsman. It
      is not inconceivable that the right to effective judicial protection means that the citizens in question must be able to appeal
      against decisions of the Ombudsman. However, that is not the question at issue in this case, since Mr Lamberts did not lodge
      an appeal, but brought a claim for damages.
      
      
        79.      The fact that Community law does not specifically provide for administrative redress in respect of decisions of the Ombudsman
      is no reason to conclude that the actions of the Ombudsman cannot result in damage eligible for compensation under Community
      law. On the contrary, it is precisely because there is no administrative redress that the citizens concerned need an alternative.
      
      
        80.      In the present case, when assessing the admissibility of the application at first instance, the question is whether damages
      can be awarded using the compensation procedure set out in Article 235 in conjunction with Article 288 EC.
      
      
       E – The Ombudsman’s liability
        81.      In his Opinion in Köbler 
         			(11)
         		 Advocate General Léger gave a detailed analysis of the liability of States for damage caused to citizens.
      
      
        82.      A number of elements of that analysis – which I support – are relevant to the present case. They are:
       a)        the right to compensation as a fundamental principle of Community law, 
         			(12)
         		 b)        the State as a single entity, 
         			(13)
         		 c)        the importance of a body’s independence for liability.
      
      
        83.      With regard to a), as the Advocate General explains with reference to Brasserie du Pêcheur and Factortame, 
         			(14)
         		 the right to compensation is recognised as a fundamental principle of Community law and a necessary extension of the principle
      of effective judicial protection and access to the courts.
      
      
        84.      With regard to b), it flows from international law that where the liability of the State is at issue, the State is regarded
      as a single entity. It makes no difference whether the damage is attributable to the legislature, the judicature or the executive.
      
      
        85.      With regard to c), the conduct of a body that is independent of the executive must still be regarded as the conduct of the
      State. Counter-arguments relating to the independence of the judicature – or in the present case the Ombudsman – are to be
      dismissed. However, when determining whether there is a sufficiently serious breach of Community law, account must be taken
      of the specific function of an independent body.
      
      
        86.      That analysis, given in the context of the liability of a national court, also applies to the liability of organs of the Community
      itself. From the case-law of the Court I infer that where there has been a breach of Community law, it is irrelevant whether
      the damage arising from that breach has been caused by the actions of a Community body or by a national authority. The conditions
      for the liability of the Member State for damage caused to individuals as a result of a breach of Community law cannot in
      principle be different from those that apply to the Community’s liability in similar situations, according to the judgment
      in Bergaderm and Goupil. 
         			(15)
         		
      
        87.      It follows from the above observations that the Community can be held liable for the conduct of the Ombudsman. When assessing
      whether that liability also arises in a particular case, account must be taken of the specific function of the Ombudsman.
      He performs his duties independently, is not under review, and he enjoys wide discretion in dealing with complaints submitted
      to him.
      
      
        88.      In his analysis in Köbler, Advocate General Léger cites the excusability of the misconduct in question as the decisive criterion for determining whether
      there is liability. 
         			(16)
         		 That excusability depends on the clarity and precision of the rule of law breached and on the existence and state of judgments
      of the Court.
      
      
        89.      I also agree with this analysis, even though I would prefer to talk of reprehensibility rather than (in)excusability. If the
      law breached is clear and precise, the Ombudsman may be liable. As I explain from point 129 below with reference to the present
      case, account must be taken not just of the wording, but also of the purpose of the rule of law breached.
      
      
      VIII –  Assessment of the scope of the appeal findings 
        90.      Article 225 EC limits the right of appeal to the Court of Justice to points of law only. In addition, the Court’s Rules of
      Procedure place a number of restrictions on the arguments that the parties may submit. Article 113(2) of those Rules, for
      example, states that the subject-matter of the proceedings before the Court of First instance may not be changed, and Article
      116(1) states that new claims are not permitted.
      
      
        91.      The case-law of the Court clearly states that ‘an appeal must indicate precisely the contested elements of the judgment which
      the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal. … That
      requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of
      law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted
      to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examination of the application
      submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.’ 
         			(17)
         		
      
        92.      The Ombudsman and the European Parliament infer from the Court’s form of words cited here that Mr Lambert’s application to
      have the judgment of the Court of First Instance set aside may not be examined.
      
      
        93.      I do not agree with that view. First of all, I would point out that the form of words in question has been interpreted very
      subtly by the Court. In its judgment in Associação dos Refinadores de Açúcar Portugueses(ARAP)
         			(18)
         		 the Court states the following: ‘However, provided that the appellant challenges the interpretation or application of Community
      law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an
      appeal … . Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the
      Court of First Instance, an appeal would be deprived of part of its purpose.’ As the Court states subsequently, the main appeal
      specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before
      it at first instance.
      
      
        94.      The appeal must clearly indicate which aspects of the judgment under appeal are criticised and the pleas in law and arguments
      on which the appeal is based. That brings me to the present proceedings. Mr Lamberts attempts to show that the Court of First
      Instance breached Community law, and he particularly refers for that purpose to a number of specific points in the disputed
      judgment.
      
      
        95.      Mr Lamberts’s main complaint relates to the Ombudsman’s performance of his duties. 
         			(19)
         		 Mr Lamberts claims that, in not referring him to the Community judicature and not trying to reach a friendly settlement,
      the Ombudsman failed to fulfil the mission entrusted to him. Essentially, Mr Lamberts seeks a ruling on the substance of the
      duties and powers assigned to the Ombudsman under Community law. Seen in those terms, this is a point of law concerning the
      interpretation of Community law, and I therefore find this complaint admissible.
      
      
        96.      In assessing that point of law the Court may also examine the point raised by Mr Lamberts as to whether the Ombudsman must
      perform his duties with extra care where the complainant has suffered damage.
      
      
        97.      The situation is quite different with Mr Lamberts’s allegation that the Court of First Instance made errors of appraisal (see
      point 48 of this Opinion) in its assessment of what actually happened during the complaints procedure before the Ombudsman.
      Here Mr Lamberts is essentially seeking a re-examination of the facts, which is outside the scope of an appeal. I therefore
      propose that the Court declare inadmissible the complaint concerning errors of appraisal.
      
      
        98.      The Ombudsman and the European Parliament further argue that the letter of 17 December 1999 from the President of the European
      Parliament may not be taken into account. 
         			(20)
         		
      
        99.      According to Article 113 of the Rules of Procedure new claims are not allowed. Nor is it possible, on appeal, to put forward
      complaints which have not already been pleaded at first instance. It must always be examined whether the party is still acting
      within the framework of the complaint (or plea in law) put before the Court of First Instance, or whether it is introducing
      a completely new point. 
         			(21)
         		
      
        100.    I consider that in the present case there is no question of a new complaint. Mr Lamberts argued at first instance that the
      Ombudsman is subject to judicial review. That claim was rejected by the Ombudsman himself in his appeal, when he argued among
      other things that review is a matter for the European Parliament. Mr Lamberts is now submitting the letter in support of his
      earlier claim. The letter illustrates the fact that review by the European Parliament is not of the same nature as judicial
      review. In short, the Court may include the letter of 17 December 1999 in its appraisal.
      
      
      IX –  Assessment of the admissibility of the action at first instance
       A – The nature of the compensation procedure and the Ombudsman’s liability 
        101.    The Ombudsman refers first of all to the constitutional basis in the EC Treaty and claims that judicial review of the conduct
      of the Ombudsman is limited. Review of the legality of the inquiry procedure lies, in his view, with the European Parliament,
      not with the Community judicature. The European Parliament adduces similar arguments.
      
      
        102.    As I indicated earlier (point 73), I consider this position to be fundamentally wrong. The European Parliament does not review
      the Ombudsman’s performance of his duties in individual cases, and its authority here is of no relevance to review by the
      Community judicature.
      
      
        103.    That brings me to the compensation procedure provided for in the EC Treaty. Article 288 EC contains a general rule for making
      good damage caused by the Community institutions or their servants in the performance of their duties. The Court of Justice
      has jurisdiction in disputes on that subject (Article 235 EC). That jurisdiction is not subject to any restrictions.
      
      
        104.    Article 235 in conjunction with Article 288 EC sets out the general legal principles on which unlawful acts and the related
      compensation are based. In essence, everyone in society in principle bears the consequences of any damage he suffers. If,
      however, that damage is attributable to another person’s unlawful conduct, that other person may be held liable and may, in
      certain circumstances, be required to make good the damage. The duty to make good damage in the event of unlawful conduct
      applies to the government just as to individuals.
      
      
        105.    The compensation procedure referred to in Article 235 in conjunction with Article 288 EC provides for compensation for damage
      caused by (the unlawful conduct of) the institutions of the European Communities and their servants. As the Court of First
      Instance rightly states in the contested judgment, ‘The term also covers … all other Community bodies established by the Treaty
      and intended to contribute to achievement of the Community’s objectives. Consequently, measures taken by those bodies in the
      exercise of the powers assigned to them by Community law are attributable to the Community, according to the general principles
      common to the Member States referred to in the second paragraph of Article 288 EC’. 
         			(22)
         		
      
        106.    I would point out that the Court’s jurisdiction in actions for compensation against the Community is exclusive. The national
      courts have no jurisdiction. 
         			(23)
         		
      
        107.    Furthermore, the compensation procedure under Article 235 EC is particularly important in that there is no means of appeal
      against decisions of the Ombudsman. An action for damages is the only way in which a citizen affected by the conduct of the
      Ombudsman can assert his right to proper legal protection. 
         			(24)
         		
      
        108.    Seen from the citizen’s point of view, if he suffers damage as a result of a Community body’s action or failure to act, he
      must be able to hold that body liable. A procedure must be available to him in law to assert his claim for liability in a
      direct and simple manner. That is the purpose of Article 235 EC. It makes no difference to the citizen which body caused him
      damage, nor is it relevant in the performance of which duty that damage occurred.
      
      
        109.    Viewed in that light I cannot agree with the very conservative opinions which the Ombudsman and the European Parliament have
      put forward in these proceedings on the subject of the Ombudsman’s liability. The institution of Ombudsman was introduced
      precisely in order to give the citizens of the European Union a means of taking action against maladministration on the part
      of a Community institution. In other words, the Ombudsman is there for European citizens who feel that they have been failed
      by a Community institution’s action or failure to act.
      
      
        110.    In my view it is contrary to the fundamental purpose of the Ombudsman for a European citizen to be left empty-handed in the
      event of maladministration by the Ombudsman himself, and this certainly applies, of course, if the Ombudsman’s action or failure
      to act causes damage. I would therefore have found it appropriate to the Ombudsman’s duties if he had advocated the broadest
      possible liability. The same applies to the European Parliament, which is elected by the citizens of the European Union.
      
      
        111.    In short, the Ombudsman may be held liable for his actions under Article 235 in conjunction with Article 288 EC. There is
      no restriction arising from Community law.
      
      
        112.    When establishing the unlawfulness of the Ombudsman’s conduct, account must naturally be taken of the particular function
      which the Ombudsman is required to fulfil.
      
      
       B – The conditions for liability and more particularly the lawfulness of government action
        113.    The Ombudsman and the European Parliament claim that the compensation procedure is wrongly used to question the lawfulness
      of the Ombudsman’s action or failure to act.
      
      
        114.    That claim brings me to the conditions which the Court uses for presuming liability for public action, irrespective of whether
      it relates to the conduct of a Community body or a national authority (see point 84 above). According to settled case-law
      the Community can be non-contractually liable and there can be entitlement to compensation for the damage suffered only if
      a number of conditions are met: the conduct of which the Community institutions are accused must be unlawful as a result of
      a sufficiently serious infringement of a rule of law, the rule of law infringed must be intended to confer rights on individuals,
      the damage suffered must be real and there must be a causal link between the conduct and the damage suffered.
      
      
        115.    It flows from this that an appraisal of the lawfulness of the action at the root of that damage is essential for establishing
      whether there is public liability, since the unlawful nature of an action is one of the constituent elements of a duty to
      make good damage. Here I leave aside the possibility of liability in the event of lawful action by the Community. The Community
      judicature has never yet held the Community liable in the event of lawful action. Nevertheless, the Court does not entirely
      preclude such liability, albeit only under very serious conditions. 
         			(25)
         		 The doctrine of liability in the event of lawful public action is not an issue in the present case, and in view of the conditions
      which the Court imposes, it could never be a satisfactory solution here.
      
      
        116.    In short, if the Community judicature could not test the lawfulness of the action of an institution, the procedure under Article
      235 EC would be deprived of all meaning. Furthermore – and I will emphasise this point once again – it is precisely because
      there is no specific appeal process open to the citizen concerned that there is an interest in allowing the lawfulness of
      an action by the Ombudsman to be tested using the procedure under Article 235, since the citizen has a right to proper legal
      protection which is recognised in Community law.
      
      
        117.    I therefore do not agree with the position of the Ombudsman and the European Parliament. As the Court of First Instance rightly
      states in paragraph 58 of its judgment, that procedure is an autonomous form of action. It refers here to its own case-law
      and that of the Court, which hold that the procedure may relate to any damage resulting from a measure, whether legally binding
      or not, or from conduct, attributable to a Community institution or body. In short, the procedure under Article 235 EC is
      not limited to a particular form of damage.
      
      
        118.    That being the case, Parliament’s claim that only measures by the Community that have legal consequences can give rise to
      compensation must also be dismissed.
      
      
        119.    The Community judicature also need not show restraint in its assessment. Restraint of assessment relates to a different issue
      in the present case. As the Court of First Instance rightly states, the Ombudsman enjoys a wide margin of discretion. The
      judicature need only show restraint in assessing the use made of that margin of discretion, when it must not put itself in
      the administrative body’s shoes. The requirement that the breach be sufficiently serious then comes into play. The Court uses
      as a decisive test for this whether a Community institution manifestly and gravely disregarded the limits on its discretion.
      Where the institution in question has only considerably reduced, or even no, discretion, the mere infringement of Community
      law may, however, be sufficient to establish the existence of a sufficiently serious breach. 
         			(26)
         		
      
        120.    Where an administrative body enjoys a wide margin of discretion, the Community judicature must examine whether the body has
      exceeded the limits of that discretion and thus acted unlawfully. If those limits have been exceeded, then a sufficiently
      serious breach exists.
      
      
       C – The origin of the damage
        121.    The Ombudsman’s third argument essentially concerns the origin of the damage. The damage occurred through the action of the
      Commission, and the procedure before the Ombudsman is not intended to remedy that damage. That is why the application is not
      admissible. Mr Lamberts contests this by arguing that serious misconduct by the Ombudsman actually lies at the root of the
      damage.
      
      
        122.    I agree with the Ombudsman’s position in so far as he contends that he cannot be held liable for the actions of the Commission.
      Article 235 in conjunction with Article 288 EC does, admittedly, provide for the non-contractual liability of the European
      Community as such, but that does not mean that a body can be held liable for damage caused by another body or institution.
      A claim for damages must be made against the body or institution that caused the damage.
      
      
        123.    However, the application at first instance relates to damage resulting from what Mr Lamberts alleges was the Ombudsman’s breach
      of his administrative duties. He claims that he suffered damage as a result of the manner in which his complaint was dealt
      with by the Ombudsman, and he puts forward arguments in support of that view. He does not contest the Commission’s earlier
      decision.
      
      
        124.    On the basis of what Mr Lamberts thus established as the subject-matter of the dispute the Court of First Instance was able
      to find the application admissible. The application related to the conduct of the Ombudsman himself. Whether the Ombudsman’s
      conduct did actually cause the alleged damage is a question that must be answered when assessing the merits of the claim,
      not when assessing admissibility.
      
      
       D – Conclusion
        125.    On the basis of the above considerations I have reached the conclusion that the application at first instance was correctly
      ruled admissible by the Court of First Instance. The Ombudsman’s appeal must therefore be dismissed.
      
      
      X –  Substance
       A – Introduction 
        126.    As I said, according to settled case-law the Community may have non-contractual liability and there may be entitlement to
      have the damage suffered made good where:
      
        
      –
         the conduct of which the Community institutions are accused is unlawful as a result of a sufficiently serious breach of a
            rule of law;
         
      
      
        
      –
         the rule of law infringed is intended to confer rights on individuals;
      
      
        
      –
         the damage suffered is real, and 
      
      
        
      –
         there is a causal link between the conduct and the alleged damage.
      
      
       Below I shall look at the first two criteria together, which mainly concern unlawfulness, and the third and fourth criteria
      together, which both relate to damage.
      
      
        127.    The Court may confine its appraisal to Mr Lamberts’s complaint concerning the Ombudsman’s performance of his duties. In point
      97 above I concluded that the other points that Mr Lamberts had put forward were not admissible.
      
      
        128.    More particularly, what is at issue is:
      
        
      –
         the possibility of referring a complainant to another competent authority (Article 2(5) of Decision 94/262 and Article 2.5
            of the implementing provisions). To what extent can this power of the Ombudsman be regarded as an obligation?
         
      
      
        
      –
         seeking a friendly settlement (Article 6 of the implementing regulations). To what extent does the term ‘seek’ imply an obligation
            for the Ombudsman?
         
      
      
      
      
       B – Referral to another competent authority
        129.    Article 2(5) of Decision 94/262 and Article 2.5 of the implementing provisions provide only that the Ombudsman has the power,
      not the obligation, to refer a complainant. Referral is thus primarily formulated as a service which the Ombudsman performs
      for the complainant, rather than as an administrative duty. From that point of view, if the Ombudsman does not refer a complainant
      he is still within the limits of his discretion and there is thus no question of a sufficiently serious breach of Decision
      94/262 and the implementing provisions.
      
      
        130.    The fact that the Ombudsman remained within the limits of his discretion and thus acted in accordance with the letter of the
      Community legislation applicable does not, in my view, mean that he fulfilled all the obligations which Community law places
      upon him. A breach of Community law may not just occur where action is not in accordance with the wording of a regulation,
      but it can also flow from a legal principle.
      
      
        131.    More particularly, I would refer in the present case to the principle of due care. The referral of a complainant is not, in
      my view, an informal option which the Ombudsman can use or not use as he sees fit. The due care which the Ombudsman too must
      show in the performance of his duties may require him to make use of that power, certainly in a case such as the present where
      the person concerned has a deadline for bringing an action before the Community judicature. It is true that failure to refer
      a complainant does not deprive him of access to the judicature, but in doing so the Ombudsman is not acting in accordance
      with one of the aims for which the body of Ombudsman was set up. He ought to make it as easy as possible, not more difficult,
      for the citizen to obtain satisfaction. The principle of due care therefore means that the Ombudsman should take his power
      of referral seriously.
      
      
        132.    I now come to the question of whether that lack of due care also involves unlawfulness in respect of the complainant. I consider
      that in not referring the complainant the Ombudsman is not acting unlawfully in respect of him. As the Court of First Instance
      rightly states, it is the choice of the complainant himself not to bring an action before the Community judicature. In other
      words, the complainant is responsible for the choice that he makes.
      
      
        133.    If he chooses not to bring an action (in good time), he cannot subsequently blame the Ombudsman for that. The Court of First
      Instance also points out here that a member of staff of a Community institution may certainly be assumed to know his rights.
      
      
        134.    For the sake of completeness I would also make the following point. The choice which a citizen has of applying either to the
      judicature or to the Ombudsman is not, by definition, a choice between the greater (the judicature) and the lesser (the Ombudsman).
      In many disputes between a government body and a citizen a mediation procedure is more appropriate than proceedings before
      the courts. If a government body has formally acted correctly, but has not taken the interests of the citizen concerned fully
      into account, proceedings before the courts do not offer the citizen a solution. That appears to be the situation here. The
      Commission can organise a competition as it sees fit, within the limits of Community law, of course. Formally speaking it
      need not make exceptions for sick candidates. Nevertheless, it may be desirable in the interests of sound administration to
      make allowance for illness. A complaint to the Ombudsman may cause the Commission to review its procedure, as indeed happened
      in the present case, although Mr Lamberts did not benefit from it himself.
      
      
       C – Friendly settlement
        135.    Article 6 of the implementing provisions regulates friendly settlements. The Ombudsman is required to seek a friendly settlement,
      which he does by working with the institution where maladministration has been established. The search for a friendly settlement
      is, for the complainant, the most important instrument that the Ombudsman possesses. Nevertheless it is nothing more than
      a search, and the Ombudsman has very wide discretion to assess whether a friendly settlement is possible and whether it is
      likely to succeed.
      
      
        136.    That wide discretion in inherent in the nature of the procedure before the Ombudsman, which primarily involves mediating between
      parties. A mediator may be expected to use his best endeavours, but cannot be expected to achieve a result. That result depends
      on the attitude of the parties. A mediator must also be able to determine when mediation does not serve (or no longer serves)
      any purpose.
      
      
        137.    The Court of First Instance found, with regard to the Ombudsman’s discretion, 
         			(27)
         		 that the Ombudsman cannot incur non-contractual liability save where he has committed a flagrant and manifest breach of his
      obligations. That appears to me to be a correct view in law, and I would add that such a serious breach can only exist where
      the Ombudsman has demonstrably not mediated when he could have done so.
      
      
        138.    The assessment of whether there has been a flagrant and manifest breach is a factual one and cannot be reviewed by the Court
      on appeal.
      
      
       D – Appraisal
        139.    In the present case the Court may establish that the finding of the Court of First Instance that the Ombudsman did not act
      unlawfully is based on a correct interpretation of Community law. The Court may therefore find Mr Lamberts’s present appeal
      unfounded.
      
      
       E – Damage and the causal link
        140.    For the sake of completeness I will now consider the damage suffered and the causal link between the Ombudsman’s conduct and
      the damage.
      
      
        141.    First of all, the damage suffered. The assessment of whether damage was actually suffered on the scale claimed by Mr Lamberts
      is a factual question that cannot be considered on appeal. Since the Court of First Instance did not assess the damage in
      its judgment – nor did it need to – I shall disregard that issue. I therefore consider Mr Lamberts’s claim 
         			(28)
         		 that the Ombudsman actually recognises the existence of damage to be irrelevant in this appeal.
      
      
        142.    That brings me to the causal link. The damage claimed by Mr Lamberts arises from a decision of the Commission, not the conduct
      of the Ombudsman. Mr Lamberts claims that he suffered damage as a result of the fact that he failed the competition and was
      therefore unable to enter service with the Commission. It is not within the Ombudsman’s competence to review the Commission’s
      decision. In other words, there is no causal link between the Ombudsman’s conduct and the occurrence of the damage. 
      
      
        143.    I would also point out that, in addition to the material damage resulting from the Commission’s action, Mr Lamberts also claims
      non-material damage arising, according to paragraph 61 of the Court of First Instance’s judgment, from the injurious and destructive
      effects of the Ombudsman's breaches of administrative duty in dealing with his case. Viewed in that manner a causal link does
      exist with the non-material damage. This application for non-material compensation appears from Mr Lamberts’s claim not to
      be separate, but is in addition to the material damage suffered. Should the Court come to assess the damage, the application
      for non-material damage need not be assessed separately.
      
       
      XI –  Conclusion
        144.    In the light of the foregoing I propose that the Court:
      
        
      –
         Declare the European Ombudsman’s appeal to be unfounded;
      
      
        
      –
         Also declare unfounded Mr Lamberts’s application, made in his reply, to annul the judgment of the Court of First Instance
            delivered on 10 April 2002 in Case T-209/00 Lamberts v European Ombudsman. 
         
      
      
      
      
       1 –
         
         Original language: Dutch.
      
      2 –
         
         Case T-209/00 [2002] ECR II-2203.
            
         
      
      3 –
         
         OJ 1994 L 113, p. 15.
            
         
      
      4 –
         
         www.euro-ombudsman.eu.int
            
         
      
      5 –
         
         For a description, see the Ombudsman’s Annual Report for 1995, available at www.euro-ombudsman.eu.int.
            
         
      
      6 –
         
         See, among others, the judgments in Case C-134/97 Victoria Film [1998] ECR I-7023, paragraphs 14 and 15, and Case C-178/99 Salzmann [2001] ECR I-4421, paragraphs 13 and 14.
            
         
      
      7 –
         
         See, on this subject, paragraphs I.1.1 and I.2.1 of the Ombudsman’s Annual Report for 1995, cited in footnote 5.
            
         
      
      8 –
         
         See paragraph I.4 of the Ombudsman’s Annual Report for 1995, cited in footnote 5.
            
         
      
      9 –
         
         The Court may, for instance, rule on the legality of decisions of the Office for Harmonisation in the Internal Market (trade
            marks and designs) (see Article 63 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ
            1994 L 11, p. 1)), or of the European Data Protection Supervisor (see Article 32(3) of Regulation (EC) No 45/2001 of the European
            Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal
            data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1)).
            
         
      
      10 –
         
         See, among others, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 39.
            
         
      
      11 –
         
         Opinion in Case C-224/01 [2003] ECR I-0000.
            
         
      
      12 –
         
         See in particular point 35 of his Opinion.
            
         
      
      13 –
         
         See in particular point 44 et seq. of his Opinion.
            
         
      
      14 –
         
         Judgment in Case C-46/93 and Case C-48/93 [1996] ECR I-1029, and in particular point 22 et seq. of the Opinion of Advocate
            General Tesauro.
            
         
      
      15 –
         
         Case C-352/98 P [2000] ECR I-5291, paragraph 41. See also the judgment in Brasserie du Pêcheur and Factortame, cited in footnote 14, paragraph 42.
            
         
      
      16 –
         
         Point 139 of his Opinion, cited in footnote 11.
            
         
      
      17 –
         
         Judgment in Bergaderm and Goupil, cited in footnote 15, paragraphs 34 and 35.
            
         
      
      18 –
         
         Case C-321/99 P [2002] ECR I-4287, paragraphs 49 and 50.
            
         
      
      19 –
         
         See points 45 and 46 above.
            
         
      
      20 –
         
         See point 38 above.
            
         
      
      21 –
         
         See the Opinion of Advocate General Mischo in Case C-279/98 P Cascades v Commission [2000] ECR I-9693, points 38 to 40.
            
         
      
      22 –
         
         See paragraph 49 of the judgment of the Court of First Instance, where reference is made to the Court’s judgment in Case C-370/89
            SGEEM and Etroy v EIB [1992] ECR I-6211, paragraphs 12 to 16.
            
         
      
      23 –
         
         See, for example, Case C-275/00 First and Franex [2002] ECR I-10943, paragraph 43.
            
         
      
      24 –
         
         See also point 79 above.
            
         
      
      25 –
         
         See Case C-237/98 P Dorsch Consult v Council and Commission [2000] ECR I-4549, paragraphs 18 and 19.
            
         
      
      26 –
         
         See Bergaderm and Goupil, cited in footnote 15, paragraphs 43 and 44.
            
         
      
      27 –
         
         Paragraph 79 of the disputed judgment.
            
         
      
      28 –
         
         See point 47 above.