CELEX: 62002CJ0234
Language: en
Date: 2004-03-23
Title: Judgment of the Court (Full Court) of 23 March 2004.#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.

Case C-234/02 P
      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)
      Summary of the Judgment
      1.        Actions for damages – Subject-matter – Application for compensation for damage caused as a result of the alleged mishandling
            by the European Ombudsman of a complaint – Admissibility – Competence of the Community judicature compatible with the Parliament’s
            powers of review – Failure to call in question the Ombudsman’s independence
      (Arts 195 EC, 235 EC and 288 EC, second para.; Statute of the European Ombudsman, Arts 3(7) and (8) and 8)
      2.        Actions for damages – Autonomy as against actions for annulment and for failure to act – Need to assess the lawfulness of
            the conduct of the Community institution or body causing the damage in order to establish liability – Action seeking compensation
            for loss resulting from the alleged mishandling by the European Ombudsman of a complaint – Assessment of the lawfulness of
            the Ombudsman’s conduct in the performance of his duties
      (Arts 235 EC and 288 EC, second para.)
      3.        Appeals – Pleas in law – Mere repetition of the pleas and arguments raised submitted to the Court of First Instance – Error
            of law relied on not identified – Inadmissible
      (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(
            1)( c))
      4.        European Ombudsman – General obligation to inform complainants of the judicial remedies available and the time-limits for
            availing themselves thereof – No such obligation
      (Statute of the European Ombudsman, Art. 2(5))
      5.        European Ombudsman – Solution according with the specific interest of the citizen concerned to be sought – Duty to cooperate
            with the institution concerned – Ombudsman’s discretion – Decision concluding that it was not possible to find a solution
            satisfactory to the complainant – Wrongful conduct – No wrongful conduct
      (Statute of the European Ombudsman, Art. 3(5))
      1.        Although the Ombudsman enjoys very wide discretion as regards the merits of complaints which he receives and the way in which
         he deals with them, and in so doing he is under no obligation as to the result to be achieved, so that review by the Community
         judicature must be limited, it is possible that in very exceptional circumstances a citizen may be able to demonstrate that
         the Ombudsman has committed a sufficiently serious breach of Community law in the performance of his duties likely to cause
         damage to the citizen concerned. Therefore, an action for damages founded on the Community’s non‑contractual liability as
         a result of the alleged mishandling by the Ombudsman of a complaint is in principle admissible.
      
      Judicial review of the activities of the Ombudsman is not precluded by the review powers available to the Parliament in regard
         of him. First, the obligation on the Ombudsman to report to the Parliament cannot be analysed as review by the Parliament
         of the proper performance by the Ombudsman of his duties in dealing with citizens’ complaints. Secondly, the procedure for
         dismissal of the Ombudsman relates to an appraisal of his overall activity and not to review by the Parliament of the performance
         by the Ombudsman of his tasks when dealing with a citizen’s complaint. In any event, the Parliament’s powers with regard to
         the Ombudsman are not akin to judicial review. Consequently, judicial review of the Ombudsman’s activity does not duplicate
         review by the Parliament.
      
      Furthermore, it does not appear that the possibility that, under certain circumstances, the Community may incur liability
         owing to conduct on the part of the Ombudsman in the performance of his duties which is contrary to Community law is of such
         a nature as to call in question the Ombudsman’s independence.
      
      (see paras 43-48, 52)
      2.        The action to establish liability is an autonomous form of action, with a particular purpose to fulfil within the system of
         legal remedies and subject to conditions of use dictated by its specific purpose. Although actions for annulment and for failure
         to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action
         to establish liability seeks compensation for damage resulting from a measure or from unlawful conduct, attributable to a
         Community institution or body.
      
      In this respect, one of the preconditions of the right to reparation being the existence of a sufficiently serious breach
         of a rule of law conferring rights on individuals, it is necessary, with regard to the non‑contractual liability of the Community,
         to assess the conduct causing the damage in order to establish the liability of a Community institution or body. In fact,
         if a Community court were unable to assess the legality of the conduct of a Community institution or body, the procedure provided
         for in Article 235 EC would be rendered ineffective.
      
      Consequently, in the context specifically of an action founded on the non‑contractual liability of the Community and seeking
         reparation for loss allegedly caused by the manner in which the Ombudsman dealt with a complaint, it is appropriate to assess
         the lawfulness of the Ombudsman’s conduct in the performance of his duties.
      
      (see paras 59-62)
      3.        Where an 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. However, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court
         of Justice and Article 112(1), first subparagraph, (c) of its Rules of Procedure 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. Where an appeal merely reproduces the pleas in law and arguments previously submitted to the Court
         of First Instance, without even including an argument specifically identifying the error of law allegedly vitiating the judgment
         under appeal, it fails to satisfy that requirement. In reality, such an appeal amounts to no more than a request for re-examination
         of the application submitted to the Court of First Instance, which falls outside the jurisdiction of the Court of Justice
         
      
      (see paras 75-77)
      4.        The provisions governing the performance of the Ombudsman’s duties, and more specifically Article 2(5) of Decision 94/262
         on the regulations and general conditions governing the performance of the Ombudsman’s duties, do not impose on the Ombudsman
         any obligation to inform the complainant of the other legal remedies afforded to him and of the time‑limits to be observed
         with regard to rights of action before the courts. Nor, a fortiori, is it incumbent on him to advise the complainant to pursue
         any particular legal remedy. Whilst it may be in the interests of the proper fulfilment of the tasks conferred on him by the
         Treaty for the Ombudsman, if appropriate, to inform the citizen concerned of the actions to be brought in order to serve his
         interests in the best way possible, Article 2(5) of Decision 94/262 cannot be interpreted as founding a right in favour of
         the complainant to be referred to the Court of First Instance in order to bring before it an action for annulment against
         the decision of the institution which is the subject of the complaint.
      
      (see paras 80-81)
      5.        As regards the search for a friendly solution to the dispute between the person who has referred a complaint to him and a
         Community institution, in accordance with Article 3(5) of Decision 94/262 on the regulations and general conditions governing
         the performance of the Ombudsman’s duties, the Ombudsman is solely required to cooperate with the institution concerned in
         order to seek a solution such as to eliminate the instance of maladministration and satisfy the complainant. In that regard
         he enjoys very wide discretion. In particular, he must assess whether the search for a solution satisfying the complainant
         may be contemplated, since there are situations in which the search for such a solution is not possible, as is envisaged in
         Article 6(3) of the provisions implementing those regulations, in which case the Ombudsman is to close the case with a reasoned
         decision. In any event, the Ombudsman cannot be criticised for not correctly performing the mission entrusted to him on the
         sole ground that he concluded that it was not possible to find a solution satisfactory to the complainant. It follows that
         the Ombudsman is able, without being guilty of wrongful conduct, to conclude in the decision closing a specific inquiry that
         there is no prospect of a friendly solution acceptable to the complainant.
      
       (see para. 82)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Full Court)23 March 2004(1)
         
         
               (Appeal  –  Inadmissibility  –  Non-contractual liability  –  European Ombudman’s manner of dealing with a complaint concerning an internal competition for establishment)
               
             In Case C-234/02 P, 
            
            
            European Ombudsman, represented by J. Sant'Anna, acting as Agent, with an address for service in Luxembourg,
            
            
            appellant,
            
             APPEAL against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 10 April 2002 in
            Case T-209/00 Lamberts v Ombudsman [2002] ECR II-2203, seeking to have that judgment set aside in part,
            
             the other party to the proceedings being:
            Frank Lamberts, represented by E. Boigelot, avocat, with an address for service in Luxembourg,
            applicant at first instance and appellant on a cross-appeal,
            
            THE COURT (Full Court),,
            
             composed of: V. Skouris, President, P. Jann, C.W.A Timmermans, C. Gulmann (Rapporteur), J.N. Cunha Rodrigues and A. Rosas,
            Presidents of Chambers, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges,
            
             Advocate General: L.A. Geelhoed,Registrar: M. Múgica Arzamendi, Principal Administrator,
            
            
             after hearing oral argument from the parties at the hearing on 13 May 2003,
            
            after hearing the Opinion of the Advocate General at the sitting on 3 July 2003,
         gives the following
         
         
         Judgment
         1
            
          By application lodged at the Registry of the Court on 24 June 2002 the European Ombudsman (‘the Ombudsman’) brought an appeal
         under Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 10 April
         2002 in Case T-209/00 Lamberts v Ombudsman [2002] ECR II‑2203 (‘the judgment appealed against’) in which the Court of First Instance declared admissible the action
         for damages founded on the alleged misconduct of the Ombudsman in dealing with a complaint.
         
         
            
               Legal framework
            
         
         2
            
          Article 195(1), (2) and (3) EC provides:
         ‘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. …’
         
         
         
         3
            
          On 9 March 1994, the European Parliament adopted Decision 94/262/ECSC, EC, Euratom on the regulations and general conditions
         governing the performance of the Ombudsman’s duties (OJ 1994 L 113, p. 15). Pursuant to Article 14 of that decision, the Ombudsman
         adopted implementing provisions on 16 October 1997, which came into effect on 1 January 1998 (‘the implementing provisions’).
         The procedure for examining a complaint to the Ombudsman is thus laid down by Article 195(1) EC, Decision 94/262 and the implementing
         provisions.
         
         
         
         4
            
          In essence, under Article 2(4), (7) and (8) of Decision 94/262 and Article 3 and Article 4.1 and 4.2 of the implementing provisions,
         when the Ombudsman receives a complaint of maladministration in the activities of Community institutions or bodies he is to
         instigate an inquiry unless, for one of the reasons indicated in the abovementioned provisions, the complaint must be dismissed
         as inadmissible, in particular where the Ombudsman fails to find sufficient grounds for an inquiry.
         
         
         
         5
            
          Under Article 2(5) of Decision 94/262 ‘the Ombudsman may advise the person lodging the complaint to address it to another
         authority’. In addition, Article 2(6) of Decision 94/262 provides that complaints submitted to the Ombudsman do not affect
         time-limits for appeals in administrative or judicial proceedings.
         
         
         
         6
            
          In accordance with the second subparagraph of Article 195(1) EC and Article 3(1) of Decision 94/262, the Ombudsman, on his
         own initiative or on the basis of complaints submitted to him, is to conduct the inquiries which he considers justified to
         clarify any suspected maladministration.
         
         
         
         7
            
          Under Article 3(1) of Decision 94/262 the Ombudsman is to inform of such action the Community institution or body which is
         the subject of the complaint or an inquiry and that institution or body may ‘submit any useful comment to him’.
         
         
         
         8
            
          After considering the opinion of that institution or body and any observations made by the complainant, the Ombudsman may
         decide either to close the case with a reasoned decision or to continue his inquiries. Under Article 4.5 of the implementing
         provisions he is to inform the complainant and the institution or body concerned accordingly. 
         
         
         
         9
            
          Where the Ombudsman finds an instance of maladministration in the activities of a Community institution or body he is, under
         Article 3(5) of Decision 94/262, to seek ‘[a]s far as possible ... a solution with the institution or body concerned to eliminate
         the instance of maladministration and satisfy the complaint.’ 
         
         
         
         10
            
          In that regard, Article 6 of the implementing provisions, entitled ‘Friendly solutions’, provides in paragraph 1 that ‘as
         far as possible [the Ombudsman] cooperates with the institution concerned in seeking a friendly solution to eliminate [the
         maladministration] and to satisfy the citizen’. If the Ombudsman considers that such cooperation has been successful, he is
         to close the case with a reasoned decision and inform the citizen and the institution concerned of the decision accordingly.
         However, Article 6.3 provides that if he ‘considers that a friendly solution is not possible, or that the search for a friendly
         solution has been unsuccessful, he either closes the case with a reasoned decision that may include a critical remark or makes
         a report with draft recommendations’.
         
         
         
         11
            
          With regard to the possibility of making a ‘critical remark’ within the meaning of the last-mentioned provision, Article 7.1
         of the implementing provisions provides that the Ombudsman is to make a critical remark if he considers inter alia ‘that it
         is no longer possible for the institution or body concerned to eliminate the instance of maladministration’ and that the instance
         ‘has no general implications’. 
         
         Facts
         
         12
            
          It is apparent from paragraphs 16 to 36 of the judgment appealed against that the facts underlying the dispute are essentially
         as set out below.
         
         
         
         13
            
          Mr Lamberts took part in an internal competition organised by the Commission of the European Communities 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 stressed
         that he had not requested a postponement of his oral test owing to a clause in the document inviting him to attend that test.
         Under that clause ‘the organisation of the tests does not permit any change in the times communicated …’.
         
         
         
         14
            
          After unsuccessfully seeking to have his case reexamined by the Commission’s services he made a complaint to the Ombudsman.
         
         
         
         15
            
          After examining that complaint, the Ombudsman on 21 October 1999 sent Mr Lamberts his decision on it. In that decision the
         Ombudsman stated that, according to his inquiry, the Commission was in practice prepared to take into account exceptional
         circumstances which prevented a candidate from attending on the day indicated in the invitation to attend an oral test. He
         added that, for the sake of sound administration, the Commission should include a passage in the letter of invitation to the
         oral test informing candidates of that possibility.
         
         
         
         16
            
          However, as regards the Commission’s refusal in this case to allow the complainant to retake the oral test, the Ombudsman
         noted in particular, in paragraphs 2.2 and 2.3 of his decision, that a ‘competition has to be conducted in accordance with
         the principle of equal treatment of candidates. Violation of this principle may lead to the annulment of the competition.
         That may entail considerable financial and administrative costs for the administration. It appears from the Commission’s opinion
         that the Commission considered that it was unable to offer a candidate the possibility of a second oral exam. The Ombudsman
         notes that there are no elements at hand which indicate that the decision of the Commission to refuse to let the candidate
         retake the oral exam has been taken in violation of any rule or principle binding upon the Commission’. The Ombudsman therefore
         considered that in the present case ‘there was no instance of maladministration’.
         
         
         
         17
            
          In conclusion, the Ombudsman made a critical remark regarding the Commission’s general administrative practice. In that remark
         he repeated his view that, as a matter of good administrative conduct, the Commission should as a general rule in future include
         a clause in the invitations to the oral test informing candidates that the date indicated may be changed in exceptional circumstances.
         As regards Mr Lamberts’s complaint, the Ombudsman concluded that ‘[g]iven that this aspect of the case concerns procedures
         relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter’. The Ombudsman
         therefore decided to close the case.
         
         Procedure before the Court of First Instance and judgment appealed against
         
         18
            
          By application lodged at the Registry of the Court of First Instance on 9 August 2000 Mr Lamberts brought an action against
         the Ombudsman and the Parliament for compensation for material and non‑material damage allegedly suffered as a result of the
         manner in which the Ombudsman had dealt with his complaint. The Ombudsman and the Parliament sought an order that the action
         be declared inadmissible.
         
         
         
         19
            
          By order of 22 February 2001 the Court of First Instance dismissed the application as inadmissible in so far as it had been
         brought against the Parliament (Case T‑209/00 Lamberts v Ombudsman and Parliament [2002] ECR II‑765). By order of the same date it ordered that the objection of inadmissibility raised by the Ombudsman be
         dealt with together with the merits. The Ombudsman sought an order, in the alternative, that the action be dismissed as unfounded.
         
         
         
         20
            
          In the judgment appealed against, the Court of First Instance first examined the admissibility of the action against the Ombudsman.
         In paragraphs 48 to 52 of that judgment, it referred to the Court’s case-law according to which under Articles 235 EC and
         288 EC an action may be brought against any Community body in order to establish the non‑contractual liability of the Community
         and to obtain reparation for damage caused by that body in the exercise of its competences. It concluded that it had jurisdiction
         in the case of an action for damages against the Ombudsman.
         
         
         
         21
            
          The Court of First Instance went on to hold, in paragraph 57 of the judgment appealed against, that: 
         ‘Decision 94/262 … assigns to the Ombudsman not only the task of identifying and seeking to eliminate instances of maladministration
         on behalf of the public interest but also that of seeking, so far as is possible, a settlement that is in accordance with
         the specific interest of the citizen concerned. The Ombudsman has indeed, as he himself stressed, very wide discretion as
         regards the merits of complaints and the way in which he deals with them, and in so doing he is under no obligation as to
         the result to be achieved. However, even if review by the Community judicature must consequently be limited, it is possible
         that in very exceptional circumstances a citizen may be able to demonstrate that the Ombudsman has made a manifest error in
         the performance of his duties likely to cause damage to the citizen concerned.’
         
         
         
         22
            
          In paragraphs 58 and 59 of that judgment the Court of First Instance stated:
         ‘58 … the Ombudsman’s argument that any measures he may take following his inquiries are not binding cannot be accepted either.
         The action for damages provided for under the Treaty was introduced as an autonomous form of action, with a particular purpose
         to fulfil within the system of legal remedies and subject to conditions of use dictated by its specific purpose … . Although
         actions for annulment and for failure to act seek a declaration that a legally binding measure is unlawful or that such a
         measure has not been taken, an action for damages seeks compensation for damage resulting from a measure, whether legally
         binding or not, or from conduct, attributable to a Community institution or body … . 
          59 In the present case, [Mr Lamberts] accuses the Ombudsman of wrongful conduct in dealing with his complaint. It is possible
         that such conduct may prejudice the entitlement which citizens enjoy under the Treaty and Decision 94/262 to have the Ombudsman
         seek a non-judicial settlement of maladministration which affects them, and that it could cause them to sustain damage.’
         
         
         
         23
            
          The Court of First Instance dismissed the action as unfounded since Mr Lamberts had not demonstrated that the Ombudsman had
         committed any breach of his administrative duties in dealing with his complaint.
         
         
         
         24
            
          As regards the relevant pleas in the present appeal the following matters emerge from the judgment appealed against.
         
         
         
         25
            
          First, Mr Lamberts criticised the Ombudsman for not drawing his attention to the possibility of bringing an action before
         the Court of First Instance for annulment of the Commission’s decision. However, the Court of First Instance has held that
         a member of staff of the Communities is deemed to be aware of the procedure for bringing an action before the Court of First
         Instance. The Ombudsman may advise the individual on this point but is not compelled to do so by any provision of Community
         law.
         
         
         
         26
            
          Secondly, Mr Lamberts complained 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 although that opinion, drafted in English, the
         language in which Mr Lamberts had made the complaint, had been submitted after the time-limit set by the Ombudsman. He also
         pointed out that that version of the opinion did not correspond to the French version originally sent. In that connection
         the Court of First Instance noted that the time-limit set by the Ombudsman for the institution to submit its opinion is not
         absolute and that the language versions did not differ with regard to the relevant factors in the Ombudsman’s consideration
         of the complaint brought before him.
         
         
         
         27
            
          Thirdly, Mr Lamberts maintained that the Ombudsman was under an obligation to use his best endeavours in order to arrange
         a friendly settlement acceptable to the citizen. The Court of First Instance pointed out that the Ombudsman enjoys very wide
         discretion in that regard. Consequently, non-contractual liability can be incurred by the Ombudsman only where he has committed
         a flagrant and manifest breach of his obligations in that connection. He cannot, in principle, merely forward the opinions
         of the institution to the citizen concerned. In the present case the Ombudsman examined the merits of the point of view defended
         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 Mr Lamberts.
         
         Forms of order sought by the parties before the Court
         
         28
            
          In his appeal the Ombudsman claims that the Court should:
         
         
         
          
         –
            set aside the judgment appealed against inasmuch as it declares the action for damages admissible;
         
         
         
         
          
         –
            declare that action inadmissible.
         
         
         
         
         
         29
            
          Mr Lamberts lodged a reply with the Court Registry. He contends that the Court should:
         
         –
            dismiss the appeal;
         
         
         –
            set aside the judgment appealed against with regard to the substance 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 1 234 394 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.
                     
               
         
         
         
         
         
         
         30
            
          The Parliament lodged a statement in intervention in support of the Ombudsman.
         
         Main appeal
         
         31
            
          Article 56 of the Statute of the Court of Justice provides that an appeal may be brought before the Court, inter alia, against
         decisions of the Court of First Instance disposing of a procedural issue concerning a plea of lack of competence or inadmissibility
         and that such an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions.
         
         
         
         32
            
          In the judgment appealed against the Court of First Instance first rejected the objection of inadmissibility raised by the
         Ombudsman against the action brought by Mr Lamberts and went on to dismiss the latter’s action as unfounded.
         
         
         
         33
            
          Since the Ombudsman was unsuccessful in part in his submissions his appeal against the judgment of the Court of First Instance
         to the extent to which it rejected his plea of inadmissibility is therefore admissible (see, to that effect, Case C‑73/97 P
         France v Comafrica and Others [1999] ECR I‑185 and Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 50).
         
         
         
         34
            
          Next, the Ombudsman does not call in question the finding by the Court of First Instance that it has jurisdiction under Article
         235 EC and the second paragraph of Article 288 EC to hear actions for damages brought against him qua Community body.
         
         
         
         35
            
          In fact the Ombudsman acknowledges that in principle a citizen may bring an action for damages in respect of the damage which
         the Ombudsman has caused him by any misconduct, that is to say actions distinct from the investigative procedures, which was
         committed in breach of the duties imposed on the Ombudsman by the Treaty and by the rules governing his status and infringed
         the individual rights of the citizen, such as the right to confidential treatment of certain information.
         
         
         
         36
            
          Conversely, he considers it to be in breach of Community law for an action for damages to be brought against him in circumstances
         such as those in the present case, where the action seeks a review of the legality of the inquiry conducted by him and of
         his decision to close the procedure. In that regard, the Court of First Instance exceeded the limits to which judicial review
         of his activity is subject.
         
         
         
         37
            
          In support of his appeal the Ombudsman raises a single plea based, on the one hand, on breach by the Court of First Instance
         of Community law, in particular, of Article 195 EC and Decision 94/262, and, on the other, on disregard or misinterpretation
         by the Court of First Instance of its own case‑law and that of the Court.
         
         
         
         38
            
          That plea is divided into three limbs.
         
         First limb of the plea Presentation and arguments
         
         
         39
            
          In the first limb of his plea the Ombudsman, supported by the Parliament, criticises the Court of First Instance for carrying
         out a judicial review of the legality of the inquiry and of the decision to close the procedure, since, under the provisions
         governing the performance of the Ombudsman’s duties and his liability, the power of review is conferred on the Parliament.
         
         
         
         40
            
          In that regard he relies on Article 195 EC and Article 3(7) and (8) of Decision 94/262 according to which the Ombudsman has
         to submit to the Parliament special reports and an annual report on his activities. Essentially he points out that those reports
         are analysed by the Parliament and deliberated on. He stresses that the inquiry conducted into the complaint by Mr Lamberts
         was mentioned in the 1999 annual report which was submitted to the Parliament in April 2000. After analysing it, the Parliament
         drew up its own report which it adopted in July 2000. By agreeing to examine on its merits a case in which Mr Lamberts contested
         the manner in which the Ombudsman had dealt with his complaint and the conclusions which he had arrived at, the Court of First
         Instance wrongly conducted a review of the legality of the inquiry conducted by the Ombudsman and of his conclusions, which
         duplicates the review incumbent on the Parliament under the EC Treaty and which has already been conducted.
         
         
         
         41
            
          Furthermore, the Ombudsman maintains that Article 195(2) EC and Article 8 of Decision 94/262 provide for a specific procedure
         for the case where the Ombudsman is guilty of serious misconduct or several cases of misconduct calling in question his capacity
         to perform his duties. In that situation the Ombudsman may, at the request of the Parliament, be dismissed by the Court. If
         Mr Lamberts was of the view that the Ombudsman had not dealt correctly with his complaint, he ought to have referred the matter
         to the Parliament and not to the Court of First Instance in the context of an action for damages.
         
         
         
         42
            
          The Ombudsman and the Parliament add that the interpretations relied on by the Court of First Instance in declaring admissible
         an action for damages in respect of damage occasioned by the Ombudsman are likely to disturb the institutional equilibrium
         established around him and to call in question his independence under Article 195(3) EC.
         
          Findings of the Court
         
         
         43
            
          The Court of First Instance did not err in law in considering that judicial review of the activities of the Ombudsman is not
         precluded by the review powers available to the Parliament in regard of him.
         
         
         
         44
            
          First, the obligation on the Ombudsman to report to the Parliament cannot be analysed as review by the Parliament of the proper
         performance by the Ombudsman of his duties in dealing with citizens’ complaints.
         
         
         
         45
            
          Secondly, the procedure for dismissal of the Ombudsman relates to an appraisal of his overall activity and not to review by
         the Parliament of the performance by the Ombudsman of his tasks when dealing with a citizen’s complaint.
         
         
         
         46
            
          In any event, the Parliament’s powers with regard to the Ombudsman are not akin to judicial review.
         
         
         
         47
            
          Consequently, judicial review of the Ombudsman’s activity does not duplicate review by the Parliament.
         
         
         
         48
            
          As regards the alleged risk that judicial review of the Ombudsman’s activity calls in question his independence, a finding
         of liability owing to damage occasioned by the Ombudsman’s activity concerns not the personal liability of the Ombudsman but
         that of the Community. It does not appear that the possibility that, under certain circumstances, the Community may incur
         liability owing to conduct on the part of the Ombudsman in the performance of his duties which is contrary to Community law
         is of such a nature as to call in question the Ombudsman’s independence.
         
         
         
         49
            
          According to settled case-law on the Community’s liability for damage caused to individuals by a breach of Community law attributable
         to a Community institution or body, a right to reparation is afforded where three conditions are met: the rule of law infringed
         must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal
         link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties
         (see Case C‑472/00 P Commission v Fresh Marine [2003] ECR I‑7541, paragraph 25, and case‑law cited). As regards the second condition, the decisive test for finding that
         a breach of Community law is sufficiently serious, in circumstances such as those in the present case, is whether the Community
         institution or body concerned manifestly and gravely disregarded the limits on its discretion (Commission v Fresh Marine, cited above, paragraph 26).
         
         
         
         50
            
          In order to determine whether there has been a sufficiently serious breach of Community law rendering the Community non-contractually
         liable owing to the conduct of the Ombudsman, regard must be had to the specific nature of the latter’s function. In that
         context, it should be borne in mind that the Ombudsman is merely under an obligation to use his best endeavours and that he
         enjoys wide discretion.
         
         
         
         51
            
          Thus, contrary to the assertions of the Ombudsman and the Parliament, the review conducted by the latter over the former does
         not preclude judicial review which must be carried out with due regard for the specific nature of the Ombudsman’s function.
         
         
         
         52
            
          Consequently, the Court of First Instance did not infringe the provisions of Community law governing the performance of the
         Ombudsman’s duties and review of the Ombudsman by declaring admissible in principle an action for damages founded on the Community’s
         non‑contractual liability as a result of the alleged mishandling by the Ombudsman of a complaint. The Court of First Instance
         was therefore entitled to find, in paragraph 57 of the judgment appealed against, that not only does the Ombudsman enjoy very
         wide discretion as regards the merits of complaints and the way in which he deals with them, and that in so doing he is under
         no obligation as to the result to be achieved, but also that, even if review by the Community judicature must consequently
         be limited, it is possible that in very exceptional circumstances a citizen may be able to demonstrate that the Ombudsman
         has committed a sufficiently serious breach of Community law in the performance of his duties likely to cause damage to the
         citizen concerned.
         
         
         
         53
            
          The first limb of the plea is therefore unfounded.
         
         Second limb of the plea Presentation and arguments
         
         
         54
            
          In the second limb of his plea the Ombudsman, supported by the Parliament, criticises the Court of First Instance for erring
         in law by declaring admissible an action for damages which in actual fact is seeking to question the legality of the inquiry
         and the decision to close the procedure although, under the case‑law of the Court of First Instance and the Court, the legal
         remedies provided for in that regard by the Treaty are not available where the Ombudsman is concerned.
         
         
         
         55
            
          The Ombudsman argued in particular that the inquiries which he conducts and the conclusions which he reaches, even if they
         are termed ‘decisions’, have no direct legal effect on the situation of citizens and no binding legal effect on the institution
         concerned. Consequently, he considers that, even if his inquiries were vitiated by formal defects and his conclusions by errors
         of law, those inquiries and conclusions could not in any event occasion loss to complainants who have suffered damage owing
         to maladministration attributable to a Community institution and not to the Ombudsman.
         
         
         
         56
            
          The Ombudsman further criticises the Court of First Instance for conducting, in paragraphs 64 to 85 of the judgment appealed
         against, a detailed analysis of his inquiry and conclusions, as it would have done in the case of an action for annulment,
         and thus for carrying out an actual review of legality of the whole of the inquiry and his conclusions.
         
         
         
         57
            
          In doing so, the Court of First Instance did not observe the distinction between actions for damages, on the one hand, and
         actions for annulment and for failure to act, on the other, and disregarded its own case‑law and that of the Court from which
         it is apparent that the Ombudsman’s inquiries and decisions cannot be subject to judicial review in the context of the two
         last-mentioned forms of action.
         
         
         
         58
            
          The Ombudsman criticises the Court of First Instance for none the less allowing such judicial review under the guise of an
         action for damages and thus opening the way to the introduction of numerous actions for annulment, or for failure to act,
         against the Ombudsman in the guise of purported actions for damages. The Court of First Instance failed to take account of
         the fact that, in actual fact, the action for damages against the Ombudsman constituted a misuse by Mr Lamberts of the actions
         for annulment and for failure to act.
         
          Findings of the Court
         
         
         59
            
          The action to establish liability is an autonomous form of action, with a particular purpose to fulfil within the system of
         legal remedies and subject to conditions of use dictated by its specific purpose (Case 4/69 Lütticke v Commission [1971] ECR 325, paragraph 6, and the order of 21 June 1993 in Case C‑257/93 Van Parijs and Others v Council and Commission [1993] ECR I-3335, paragraph 14). Although actions for annulment and for failure to act seek a declaration that a legally
         binding measure is unlawful or that such a measure has not been taken, an action to establish liability seeks compensation
         for damage resulting from a measure or from unlawful conduct, attributable to a Community institution or body (see to that
         effect Case 118/83 CMC v Commission [1985] ECR 2325, paragraphs 29 to 31; Case C‑308/87 Grifoni v Commission [1990] ECR I‑1203, and Case C‑146/91 KYDEP v Council and Commission [1994] ECR I‑4199). 
         
         
         
         60
            
          One of the preconditions of the right to reparation is, as has been recalled in paragraph 49 above, that there must be a sufficiently
         serious breach of a rule of law conferring rights on individuals. Thus, with regard to the non‑contractual liability of the
         Community, it is necessary to assess the conduct causing the damage in order to establish the liability of a Community institution
         or body.
         
         
         
         61
            
          In fact, if a Community court were unable to assess the legality of the conduct of a Community institution or body, the procedure
         provided for in Article 235 EC would be rendered ineffective.
         
         
         
         62
            
          Consequently, in the context of an action founded on the non‑contractual liability of the Community and seeking reparation
         for loss allegedly caused by the manner in which the Ombudsman dealt with a complaint, it is appropriate to assess the lawfulness
         of the Ombudsman’s conduct in the performance of his duties.
         
         
         
         63
            
          The Court of First Instance was therefore entitled, in paragraphs 64 to 85 of the judgment appealed against, to seek to determine
         whether the Ombudsman had committed the sufficiently serious breach of Community law alleged against him by Mr Lamberts and
         to review the manner in which the Ombudsman had dealt with the latter’s complaint, in order to determine whether it should
         uphold the action brought before it.
         
         
         
         64
            
          In conclusion the Court of First Instance did not err in law as to the scope of the action for damages by declaring admissible
         the action brought by Mr Lamberts.
         
         
         
         65
            
          Accordingly, the second limb of the plea is unfounded.
         
         Third limb of the plea Presentation and arguments
         
         
         66
            
          In the third limb of his plea the Ombudsman, supported by the Parliament, is essentially alleging that the Court of First
         Instance infringed Community law by declaring admissible the action for damages brought against him by Mr Lamberts, although
         that action sought reparation of damage caused by the conduct of the Commission. In reality Mr Lamberts, who had not brought
         within the requisite time‑limit an action for annulment against the decisions of the Commission concerning him, was seeking,
         in the guise of an action for damages against the Ombudsman, to circumvent the mandatory time‑limits governing the action
         for annulment in order to challenge before the Community courts the legality of those Commission decisions.
         
          Findings of the Court
         
         
         67
            
          The Ombudsman cannot in any event be held liable for the conduct of the Commission. An action seeking reparation for damage
         caused by the conduct of a Community institution or body must be directed against that institution or body.
         
         
         
         68
            
          In support of the action brought at first instance Mr Lamberts argued that he had suffered damage caused by the misconduct
         and negligence of the Ombudsman in the examination of his complaint. His action does not therefore seek reparation of damage
         caused by conduct of the Commission occasioning damage.
         
         
         
         69
            
          Accordingly, the Court of First Instance was right to hold, in paragraph 51 of the judgment appealed against, that, by means
         of the action brought before it, Mr Lamberts was seeking to obtain compensation for damage allegedly sustained as a result
         of negligence on the part of the Ombudsman in the performance of the duties assigned to him by the EC Treaty. 
         
         
         
         70
            
          Consequently, the third limb of the plea relied on by the Ombudsman is unfounded.
         
         
         
         71
            
          In those circumstances the main appeal must be dismissed.
         
         The cross-appeal
         
         72
            
          In support of his cross-appeal Mr Lamberts relies on two pleas.
         
         
         
         73
            
          The Ombudsman and the Parliament maintain that the cross-appeal should be rejected as inadmissible.
         
         First plea
         
         74
            
          In his first plea Mr Lamberts criticises the Court of First Instance for infringing Decision 94/262 by not upholding any allegation
         of misconduct on the part of the Ombudsman. The Court of First Instance thus infringed Article 2(5) of that decision by not
         sanctioning the Ombudsman for failing to advise Mr Lamberts in due time to bring an action before the Community courts and
         Article 3(5) thereof by not sanctioning him for failing to seek to obtain a friendly solution satisfactory to the complainant;
         by failing to do these things the Ombudsman had not fulfilled the task for which he was established by the Parliament.
         
          Admissibility of the plea
         
         
         75
            
          It must be borne in mind that, where an 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 (see order in Case C‑488/01 P Martinez  v Parliament [2003] ECR I-0000, paragraph 39 and case‑law cited). 
         
         
         
         76
            
          However, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article
         112(1), first subparagraph, (c) of its Rules of Procedure 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 (see order in Martinez  v Parliament, paragraph 40 and case‑law cited).
         
         
         
         77
            
          Where an appeal merely reproduces the pleas in law and arguments previously submitted to the Court of First Instance, without
         even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, it fails
         to satisfy that requirement. In reality, such an appeal amounts to no more than a request for re-examination of the application
         submitted to the Court of First Instance, which falls outside the jurisdiction of the Court of Justice (Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 35).
         
         
         
         78
            
          However, in the present case, in his first plea, Mr Lamberts  specifically identified the error of law alleged against the
         Court of First Instance and in fact criticised the interpretation of Community law on which it relied. In fact, that plea
         seeks to call in question the position adopted by the Court of First Instance on a point of law submitted to it at first instance,
         namely the interpretation of provisions of Community law under which the Ombudsman may advise the complainant to apply to
         another authority and must as far as possible seek a friendly solution.
         
         
         
         79
            
          The first plea is therefore admissible.
         
          Substance of the plea
         
         
         80
            
          It should be stated that the provisions governing the performance of the Ombudsman’s duties, and more specifically Article
         2(5) of Decision 94/262, do not impose on the Ombudsman any obligation to inform the complainant of the other legal remedies
         afforded to him and of the time‑limits to be observed with regard to rights of action before the courts. Nor, a fortiori, is it incumbent on him to advise the complainant to pursue any particular legal remedy.
         
         
         
         81
            
          Whilst it may be in the interests of the proper fulfilment of the tasks conferred on him by the Treaty for the Ombudsman,
         if appropriate, to inform the citizen concerned of the actions to be brought in order to serve his interests in the best way
         possible, Article 2(5) of Decision 94/262 cannot be interpreted as founding a right in favour of the complainant to be referred
         to the Court of First Instance in order to bring before it an action for annulment against the decision of the institution
         which is the subject of the complaint.
         
         
         
         82
            
          As regards the search for a friendly solution to the dispute between the person who has referred a complaint to him and a
         Community institution, in accordance with Article 3(5) of Decision 94/262, the Ombudsman is solely required to cooperate with
         the institution concerned in order to seek a solution such as to eliminate the instance of maladministration and satisfy the
         complainant. In that regard he enjoys very wide discretion. In particular, he must assess whether the search for a solution
         satisfying the complainant may be contemplated, since there are situations in which the search for such a solution is not
         possible, as is envisaged in Article 6(3) of the implementing provisions, in which case the Ombudsman is to close the case
         with a reasoned decision. In any event, the Ombudsman cannot be criticised for not correctly performing the mission entrusted
         to him on the sole ground that he concluded that it was not possible to find a solution satisfactory to the complainant. The
         Court of First Instance did not therefore err in law either in its interpretation of the Community provisions under which
         the Ombudsman is to seek, as far as possible, a friendly solution or when it held in paragraph 85 of its judgment that the
         Ombudsman is able, without being guilty of wrongful conduct, to conclude in the decision closing a specific inquiry that there
         is no prospect of a friendly solution acceptable to the complainant. 
         
         
         
         83
            
          The first plea raised by Mr Lamberts must therefore be rejected as unfounded.
         
         Second plea
         
         84
            
          In his second plea Mr Lamberts alleges that the Court of First Instance erred in its appraisal in two significant respects.
         
         
         
         85
            
          First, Mr Lamberts alleges an error in that regard in paragraph 82 of the judgment appealed against inasmuch as it is therein
         stated that ‘it is clear both from the Commission’s opinion on the applicant’s complaint and from the letter of 15 December
         1999 from the Commissioner responsible for personnel matters that the Commission refused to allow the applicant to retake
         the oral test or to seek an alternative settlement’, even though Mr Lamberts had never requested to retake the oral test.
         
         
         
         86
            
          In that regard, it should be pointed out, on the one hand, that the Court of First Instance recalled in paragraph 81 of the
         judgment appealed against that there are some situations in which the search by the Ombudsman for a friendly solution is not
         possible and considered, in paragraph 82, that that was indeed the case in this instance since the Commission refused to allow
         Mr Lamberts to retake the oral test or to seek an alternative settlement.
         
         
         
         87
            
          The critique by Mr Lamberts of paragraph 82 of the judgment appealed against does not, on the other hand, seek to demonstrate
         in what regard the Court of First Instance erred in law in verifying whether in the present case a friendly solution was possible.
         
         
         
         88
            
          The argument principally put forward by Mr Lamberts must therefore be rejected as inadmissible for the reasons stated in paragraph
         76 above.
         
         
         
         89
            
          Secondly, the Court of First Instance is said to have erred in its assessment by its reliance on manifestly erroneous reasoning
         when, in paragraph 84 of the judgment appealed against, it claimed that ‘it was only in the course of the proceedings before
         the Court of First Instance that the applicant gave examples of various alternative settlements which he considers should
         and could have been envisaged’, even though it is clear from the evidence in the file, in particular Annex 26 where the applicant
         refers to the concept of ‘special adviser’, that Mr Lamberts mentioned such solutions when his complaint was being investigated
         and before the Ombudsman took his decision, and that the latter never took account of them.
         
         
         
         90
            
          Inasmuch as it refers to the whole of the evidence in the file, that critique of paragraph 84 of the judgment appealed against
         must be regarded as a criticism of the assessment of the evidence considered by the Court of First Instance, a matter which
         is not reviewable by the Court on an appeal, which is limited to points of law, in accordance with Article 225 EC and Article
         58 of the Statute of the Court of Justice.
         
         
         
         91
            
          On the supposition that the reference to Annex 26 of the dossier submitted by Mr Lamberts to the Court of First Instance may
         be analysed as a plea alleging distortion of the clear sense of that document, it should be stated that that annex is constituted
         by correspondence between Mr Lamberts and the secretariat of the Ombudsman, and in particular by a letter of 12 March 1999
         in which reference is made to the concept of ‘special adviser’. In that letter Mr Lamberts refers to a practice of integration
         without prior competition, contrary to the rules concerning access to the Community civil service, as provided for by the
         Staff Regulations of Officials of the European Communities, which was said to have been implemented in the context of the
         integration of the staff of the Schengen secretariat into the Secretariat-General of the Council of the European Union, and
         requests the appointing authority at the Commission to show flexibility in his regard.
         
         
         
         92
            
          In light of the abovementioned documents it does not appear that, at a stage earlier than that of the proceedings before the
         Court of First Instance, Mr Lamberts made concrete proposals as to the solutions which might be envisaged in preference to
         a fresh invitation to take the oral test. Besides, the Court of First Instance was right not to take into consideration the
         proposal that flexibility should be shown to Mr Lamberts as an alternative solution capable of being envisaged.
         
         
         
         93
            
          Thus, it was without distorting the clear sense of the evidence adduced before it that, in paragraph 84 of the judgment appealed
         against, the Court of First Instance took the view that Mr Lamberts had not proposed alternative solutions at a stage prior
         to the bringing of his action, with the result that the Ombudsman had been unable to take a view specifically on such proposals
         before that action was brought.
         
         
         
         94
            
          In light of the foregoing, the cross-appeal is to be dismissed in its entirety.
         
         
         Costs
         95
            
          Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. Under Article 69(3) thereof, where each party succeeds on some and fails
         on other heads, or where the circumstances are exceptional, the Court may however order that the costs be shared or that the
         parties bear their own costs. Since each of the parties has partially failed in its submissions, it is appropriate to order
         the parties to bear their own costs. Moreover, under Article 69(4) of the Rules of Procedure, the Parliament, which intervened
         in the proceedings, is to bear its own costs.
         
         
         On those grounds,
         
         
         
            
            THE COURT
         
         
          hereby:
         
            
            
             
               1.
                  Dismisses the appeal and cross-appeal;
               
            
            
            
             
               2.
                  Orders the parties to bear their own costs.
               
            
            
                  Skouris
               
               
                  Jann
               
               
                  Timmermans
               
            
                  Gulmann
               
               
                  Cunha Rodrigues
               
               
                  Rosas
               
            
                  Puissochet
               
               
                  Schintgen
               
               
                  Macken
               
            
                  Colneric
               
               
                  
               
               
                  von Bahr
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 23 March 2004.
         
         
         
         
                  Registrar
               
               
                  President
               
            
         
         
         
                  R. Grass
               
               
                  V. Skouris
               
            
      
      
          1 –
            
            Language of the case: French.