European Ombudsman v Frank Lamberts.
Date: 2004-03-23
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.
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.
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.
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).