CELEX: C2002/180/33
Language: en
Date: 2002-07-27 00:00:00
Title: 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

27.7.2002              EN                    Official Journal of the European Communities                                    C 180/19
The applicant claims that the Court should:                             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
—     annul the decision whereby the Commission concluded                        F. Lamberts and the European Ombudsman
      with the United States of America guidelines on legislative
      cooperation and transparency;
                                                                                                (Case C-234/02 P)
—     order the Commission to pay the costs.                                                     (2002/C 180/33)
                                                                        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
Pleas in law and main arguments                                         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.
—     Despite the careful language of the document attached to
      a memorandum which the Commission sent to Com-                    The appellant claims that the Court should:
      mittee 133, responsible for the common commercial
      policy, matters of substance lead the French Government
      to think that the guidelines are a genuine undertaking            —     annul the decision concerning the admissibility of the
      and place obligations on the parties. In those guidelines               action for damages in the judgment of the Court of First
      are very precisely set out the objectives pursued, the                  Instance delivered on 10 April 2002 in Case T-209/00
      scope of action and the measures to adopt in order to                   Frank Lamberts v European Ombudsman and thus declare
      achieve the objectives set. The fact that those guidelines              that that action is inadmissible.
      are not, of themselves, intended to modify the state of
      Community law cannot disguise the fact that 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               Pleas in law and main arguments
      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            Breach of Community law
      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.                     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
      Since those guidelines must be seen as an international           conducted by the Ombudsman and of the decision closing the
      agreement within the meaning of Article 300 EC, the               case, the Court of First Instance overstepped the limits of
      measure whereby the Commission decided to enter into              judicial review of action by the Ombudsman. It carried out a
      it is vitiated by lack of competence and cannot but be            review of the Ombudsman’s exercise of his mandate, a review
      annulled.                                                         which the treaties assign to the European Parliament and
                                                                        which had already been carried out by that institution.
—     The guidelines are also contrary to the EC Treaty inas-           In declaring the case admissible the Court of First Instance
      much as they amount to a restriction of the sole power            failed to distinguish between actions for damages, on the one
      to propose which the Commission enjoys in the context             hand, and actions for annulment and actions for failure to act,
      of the Community legislative process and they affect the          on the other. The Ombudsman does not in the least deny that
      whole of the legislative process.                                 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
 ---pagebreak--- C 180/20               EN                    Official Journal of the European Communities                                       27.7.2002
inquiries and their conclusions in order to assess whether there        review of the legality of the entire procedure and conclusions
was any fault underlying the damage caused to the citizen.              of the Ombudsman’s inquiry, the Court of First Instance opens
There is no common constitutional tradition of submitting the           up the possibility of numerous actions for annulment, or
inquiries and findings of ombudsmen to judicial review. On              even actions for failure to act, being brought against the
the contrary, in the nordic countries, where the office of              Ombudsman in the guise of alleged actions for damages.
ombudsman originated, such review is excluded on consti-
tutional grounds based on the respective powers and functions           On the facts of the present case it should be acknowledged
of the courts and ombudsmen.                                            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
In carrying out a review of the duty to inform the complainant,         subject of the citizen’s complaint to the Ombudsman. In
the value of documents received within certain time-limits,             holding that that action was admissible although the damage
compliance with procedural time-limits and the validity of the          the citizen complained of was a matter for the institution
Ombudsman’s conclusions following the inquiry into the                  concerned by the complaint the Court of First Instance
possibility of friendly solutions, the Court of First Instance has      must have considered that the purpose of the Ombudsman’s
called into question the distinction between actions for                inquiries is to protect the interests of injured citizens who have
annulment and for failure to act, on the one hand, and the              suffered damage as a result of the wrongful conduct of the
action for damages, on the other. In agreeing to carry out a            institutions, which is not the case.