European Ombudsman v Claire Staelen.
Date: 2017-04-04
31


As regards the possibility that a person who has referred a complaint to the Ombudsman may put in issue the European Union’s liability because of the way in which that complaint has been handled, the Court of Justice has already stated that it is appropriate to refer to its settled case-law, according to which 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 on the author of the act and the damage sustained by the injured party. As to the second condition, the Court has, in the same context, also noted that the decisive test for finding that a breach of EU law is sufficiently serious is whether the EU institution or body concerned manifestly and gravely disregarded the limits on its discretion (judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 49 and the case-law cited).
32


The Court has also made clear, in respect to that last point, that, in order to determine whether there has been a sufficiently serious breach of EU law rendering the European Union non-contractually liable as a result of the conduct of the Ombudsman, regard must be had to the particular nature of the latter’s functions. In that context, it should be borne in mind that the Ombudsman is merely under an obligation to use her best endeavours and enjoys wide discretion (judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 50).
33


The Court has held, furthermore, that, although the Ombudsman enjoys very wide discretion as regards the merits of complaints and the way in which they are to be dealt with, and, in that context, is under no obligation as to the result to be achieved, even if review by the Courts of the European Union must consequently be limited, it is nevertheless possible that in very exceptional circumstances a person may be able to demonstrate that the Ombudsman has committed a sufficiently serious breach of EU law in the performance of her duties that is liable to cause damage to the citizen concerned (see, to that effect, judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 52).
34


It must also be borne in mind that the duty to act diligently which is inherent in the principle of sound administration and applies generally to the actions of the EU administration in its relations with the public requires that that administration act with care and caution (see, to that effect, judgment of 16 December 2008, Masdar (UK) v Commission, C‑47/07 P, EU:C:2008:726, paragraphs 92 and 93).
39


In stating, in paragraph 86 of the judgment under appeal, that the Ombudsman did not have any discretion concerning respect for the principle of diligence in a specific case, before going on to infer from this that a mere breach of that principle was therefore sufficient to establish the sufficiently serious nature of that breach, the General Court clearly intended to draw on the case-law of the Court, referred to in paragraph 71 of the judgment under appeal, according to which, where an EU institution has only considerably reduced, or even no, discretion, the mere infringement of EU law may suffice to establish the existence of a sufficiently serious breach of that law (see, in particular, judgment of 10 December 2002, Commission v Camar and Tico, C‑312/00 P, EU:C:2002:736, paragraph 54 and the case-law cited).
40


However, the General Court could not thereby decide that the conditions under which the European Union incurs non-contractual liability on the basis of a breach of the duty to act diligently were satisfied without taking into consideration the field or the circumstances or the context in which that duty was imposed on the EU institution or body concerned (see, to that effect, judgment of 30 January 1992, Finsider and Others v Commission, C‑363/88 and C‑364/88, EU:C:1992:44, paragraph 24).
41


In order for it to be concluded that there is a sufficiently serious breach of the Ombudsman’s duty to act diligently, it is therefore necessary to establish that, by failing to act with all the requisite care and caution, the Ombudsman gravely and manifestly disregarded the limits on her discretion in the exercise of her powers of investigation. Whilst having regard to that context, account must, to that end, be taken of all aspects characterising the situation concerned, including, in particular, the obviousness of the lack of care shown by the Ombudsman in the conduct of the investigation (see, to that effect, inter alia, judgments of 30 January 1992, Finsider and Others v Commission, C‑363/88 and C‑364/88, EU:C:1992:44, paragraph 22, and of 10 July 2003, Commission v Fresh Marine, C‑472/00 P, EU:C:2003:399, paragraph 31), whether it was excusable or inexcusable (see, to that effect, inter alia, judgments of 30 January 1992, Finsider and Others v Commission, C‑363/88 and C‑364/88, EU:C:1992:44, paragraph 22, and of 4 July 2000, Haim, C‑424/97, EU:C:2000:357, paragraphs 42 and 43), or whether the conclusions drawn from the Ombudsman’s examination were inappropriate and unreasonable (see, to that effect, judgment of 22 October 1991, Nölle, C‑16/90, EU:C:1991:402, paragraph 13).
53


As regards the admissibility of the second, third and fourth parts of the first ground of appeal, it is important to note that, according to the settled case-law of the Court of Justice, it is clear from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. By contrast, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see, in particular, judgment of 3 September 2009, Moser Baer India v Council, C‑535/06 P, EU:C:2009:498, paragraph 31 and the case-law cited). Thus, the Court of Justice has repeatedly observed that the question whether the General Court could, properly in law, conclude from those facts that the EU institutions had failed in their duty to act diligently is a question of law subject to the review of the Court of Justice on appeal (see, in particular, judgment of 3 September 2009, Moser Baer India v Council, C‑535/06 P, EU:C:2009:498, paragraph 34 and the case-law cited). The same applies when determining whether such a failure is, moreover, to be classified as a ‘sufficiently serious breach’ of EU law, and one that may give rise to the European Union’s non-contractual liability.
82


It should be observed in that regard that the obligation to state the reasons on which decisions of the Court are based arises under Article 36 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 117 of the Rules of Procedure of the General Court (see, to that effect, judgment of 4 October 2007, Naipes Heraclio Fournier v OHIM, C‑311/05 P, not published, EU:C:2007:572, paragraph 51).
83


It is, moreover, apparent from the settled case-law of the Court that the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, in particular, judgment of 20 January 2011, General Química and Others v Commission, C‑90/09 P, EU:C:2011:21, paragraph 59 and the case-law cited).
85


That absence of a statement of reasons, which goes to an issue of infringement of essential procedural requirements and thus hinders judicial review by the Court of Justice, involves a matter of public policy which may be raised by the Court of its own motion (see, to that effect, judgments of 20 February 1997, Commission v Daffix, C‑166/95 P, EU:C:1997:73, paragraph 24, and of 28 January 2016, Quimitécnica.com and de Mello v Commission, C‑415/14 P, not published, EU:C:2016:58, paragraph 57 and the case-law cited).
91


As regards the first part of this ground of appeal, it must be borne in mind that, according to the settled case-law of the Court, the damage for which compensation is sought must be actual and certain (see, in particular, judgments of 7 February 1990, Culin v Commission, C‑343/87, EU:C:1990:49, paragraph 27; of 14 May 1998, Council v de Nil and Impens, C‑259/96 P, EU:C:1998:224, paragraph 23; and of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 54 and the case-law cited).
114


In that respect, the Court has already held that, where an administration is called upon to conduct an inquiry, it is for that administration to conduct it with the greatest possible diligence in order to dispel the doubts which exist and to clarify the situation (see, to that effect, judgment of 11 November 1986, Irish Grain Board, 254/85, EU:C:1986:422, paragraph 16).
127


In those circumstances, it is necessary to go on to consider whether those breaches have caused Ms Staelen actual and certain non-material damage, within the meaning of the case-law referred to in paragraph 91 of the present judgment, although the Court must also be satisfied that that damage is the direct consequence of those breaches (see, to that effect, in particular, judgment of 28 June 2007, Internationaler Hilfsfonds v Commission, C‑331/05 P, EU:C:2007:390, paragraph 23 and the case-law cited).