C-234/02

OPINION OF MR GEELHOED — CASE C-234/02 P

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 3 July 2003 1

I — Introduction 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.

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 I I— Legal framework of his duties. It subsequently rejected the application as unfounded.

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:

2. The European Ombudsman requests the Court to annul the judgment of the Court of First Instance on the point of admissi- bility. The citizen concerned, Mr Lamberts, asks the Court to confirm the judgment as '1. The European Parliament shall appoint regards admissibility and to grant the merits an Ombudsman empowered to receive of the application at first instance. complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member 1 — Original language: Dutch. State concerning instances of maladminis- 2 — Case T-209/00 [2002] ECR II-2203. tration in the activities of the Community I - 2808

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7. The substance of the provisions of 10. He subsequently applied to the Euro- Decision 94/262 which are relevant to this pean Ombudsman, who dealt with the case are set out in full in the disputed complaint, but not to Mr Lamberts's judgment of the Court of First Instance satisfaction. Mr Lamberts's proposal for a (paragraphs 6 to 15). 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. 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 11. Thereafter, in the interest of good provides: 'In the case of non-contractual administrative conduct, the Commission liability, the Community shall, in accord- included a special clause in all letters of ance with the general principles common to invitation to oral tests informing candidates the laws of the Member States, make good that the date indicated might be changed in any damage caused by its institutions or by exceptional circumstances. However, the its servants in the performance of their Ombudsman concluded, with reference to duties'. Mr Lamberts, that that change in policy had no effect on past procedures.

14. The Court also points out, among 17. Second, the applicant complains that other things, that review of the Ombuds- the Ombudsman failed to demonstrate man by the Community judicature must be impartiality and objectivity in dealing with limited in view of the very wide discretion his complaint, in that the Ombudsman took which he enjoys. However, it cannot be the Commission's opinion into account excluded that a manifest error by the even though the English version of that Ombudsman may cause damage to the opinion (English being the language in citizen concerned. The Court also points which the applicant had made the com- out that Article 235 EC constitutes an plaint) had been submitted after the time- autonomous form of action in Community limit set by the Ombudsman. Furthermore, law. 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, 15. The application is dismissed (para- and that there is no difference between the graphs 61 to 89 of the judgment) because language versions on the points that are of Mr Lamberts's failure to show that the relevant to the Ombudsman's investigation. Ombudsman committed any breach of his administrative duties in dealing with his complaint. The Court reaches that conclu- sion on the basis of its assessment of five of the arguments adduced by Mr Lamberts. 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 16. First, Mr Lamberts alleged that the months elapsed between the complaint Ombudsman should have advised him of being submitted and the conclusion of the the possibility of bringing an action before procedure. The Court of First Instance the Court of First Instance against the states that the relevant provisions do not Commission's decision. In the Court of specify a time-limit within which the First Instance's view, however, it is up to Ombudsman must deal with complaints. It the citizen to choose which is the best states, however, that the procedure before remedy for him. That is particularly true of the Ombudsman must be completed within

19. Fourth, the applicant argues that the 21. By application of 21 June 2002 lodged Ombudsman is under an obligation to use at the Registry of the Court on 24 June his best endeavours to arrange a friendly 2002 the European Ombudsman brought settlement and satisfy the citizen concerned. the present appeal, claiming that the Court The Court of First Instance recalls that the should: 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 — annul the decision concerning the forward the opinions of the institution admissibility of the action for damages concerned to the citizen. In the present in the judgment of the Court of First case, however, the Ombudsman examined Instance; 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 appli- cant. — declare that that action is inadmissible.

20. Fifth, the applicant contends that, by 22. By application of 29 August 2002 making a critical remark in his decision, the lodged at the Registry of the Court on 2 Ombudsman was in breach of Article 7 of September 2002 Mr Lamberts lodged a the implementing provisions. Under that reply contending that the Court should: provision the Ombudsman may only make a critical remark where the instance of maladministration has no general implica- tions. The Court of First Instance states in that respect that a possible breach of that provision cannot harm the applicant's — dismiss the appeal; I-2812

25. The Ombudsman argues in his appeal — in the alternative: that the Court of First Instance's decision to declare the application at first instance admissible and the grounds for that deci- sion are contrary to the legislation govern- ing the Ombudsman's performance of his duties. — 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 26. First of all, the disputed judgment respect of non-material damage, contravenes the constitutional scheme together with interest to be determined established by the EC Treaty concerning by the Court until full payment, the liability of the Ombudsman.

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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. 32. According to the case-law of the Court of First Instance the Ombudsman's inquir- ies 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 conclu- 30. The Ombudsman recognises that it is sions to detailed analysis in the present open to a citizen to bring an action for proceedings, the Court of First Instance damages against the Ombudsman on the nevertheless opens up the possibility of such ground of the latter's conduct. Such an judicial review, in the guise of an action for action may not relate to the inquiry damages. The Court of First Instance procedure itself, but may concern the carries out such an analysis despite the fact infringement of a specific obligation upon that it recognises that review by the him, for instance. The Ombudsman gives as judicature has to be limited.

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36. Secondly, it is to be regarded as a denial of justice that actions for damages may not be brought against the Ombuds- man. For a body to be granted powers 40. The European Parliament begins by presupposes that that body will accept examining the role of the Ombudsman in liability in the event of misconduct or if it dealing with a complaint. In a complaint fails to perform its duties. At the hearing, regarding maladministration the Ombuds- Mr Lamberts argued in that context that man approaches the Community institution the Ombudsman is to be regarded as the concerned. The citizen in question benefits representative of a citizen bringing a only indirectly from this action by the complaint. A remedy must be open to that Ombudsman, through the repercussions citizen if his representative fails in the which the Ombudsman's approach to the performance of his duties. institution may have.

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41. Parliament agrees with the Ombuds- 43. Parliament recognises that a citizen man's view that the Court of First Instance may bring an action for damages against failed to distinguish between actions for the Ombudsman, which must relate to the damages and actions for annulment or for obligations that Community legislation., failure to act. When examining the admis- places upon the latter. The Ombudsman's sibility of the action the Court of First conduct must form the origin of the Instance used an interpretation far removed damage. from the spirit and letter of the relevant Community legislation. Parliament refers in particular to paragraphs 57 and 59 of the contested judgment.

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the obligation arising from the Statute of 48. In particular, Mr Lamberts further the Court of Justice to give grounds for alleges that the Court of First Instance judgments. Second, he alleges breach of made substantial errors of appraisal. It Community legislation on the duties and incorrectly claimed that the Commission powers of the Ombudsman, and of princi- refused to allow Mr Lamberts a second oral ples of Community law such as equality of examination, when in fact Mr Lamberts treatment for officials and the obligation to had never requested one. The Court of First base a decision on admissible grounds. 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, 46. His complaint is that the Ombudsman is therefore incorrect. failed to fulfil the duties conferred on him in that he:

49. In his reply the Ombudsman brings a — did not advise Mr Lamberts in good procedural defence against Mr Lamberts's time to bring an action before the arguments. Appeals must be limited to Community judicature; points of law. Mr Lamberts, however, contests only the actual findings of the Court of First Instance. Furthermore, an application for appeal must precisely repro- duce the critical elements of the disputed judgment, together with the legal argu- ments on which the appeal is based. In the present case, however, the appeal merely — did not try to achieve a friendly repeats the pleas and arguments already put settlement. before the Court of First Instance, including arguments based on facts which the Court of First Instance has already specifically dismissed.

— Is the Ombudsman comparable with a court or tribunal, or is he a body entrusted with certain administrative powers? B — Characteristics of the Ombudsman

— Is the primary aim of the Ombuds- man's procedure for dealing with 53. The institution of Ombudsman has a complaints to satisfy the complainant long tradition going back to the appoint- — an extension of the role of judge — ment of an Ombudsman in Sweden in or does it primarily serve the public 1809. Since then the institution of Ombuds- interest in that the actions of the man — or a closely comparable figure — Community institutions are kept under has existed in all the Member States of the closer scrutiny? European Union. The Ombudsman is essentially a body which examines citizens' complaints against the government, pro- duces reports and makes recommendations to the administration. His independence from the administration is guaranteed — — Review of the conduct of the Ombuds- and this applied even to the Swedish man himself. Under Community law Ombudsman in the 19th century — by the the Ombudsman is generally accoun- fact that he is attached not to the executive, table to the European Parliament, but but to the parliament.

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56. Although the purpose of the com- plaints procedure before the Ombudsman 59. However, the complaints procedure is to protect citizens' rights, it does not before the Ombudsman displays only a provide the same sort of legal protection as very few of the listed characteristics of that afforded by a court or tribunal. 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 com- plained against to be involved in the 57. On that point, I would refer to the case- handling of the complaint, that is not law of the Court on the concept of a court entirely a procedure inter partes. I would or tribunal within the meaning of Article refer here to Article 6 of the implementing 234 EC. It is settled case-law that the Court provisions, which provides not for the takes account of a number of factors, such

6 — See, among others, the judgments in Case C-134/97 Victoria Film [1998] ECR I-7023, paragraphs 14 and 15, and Case 5 — For a description, see the Ombudsman's Annual Report for C-178/99 Salzmann |2001] ECR I-4421, paragraphs 13 and 1995, available at www.euro-ombudsman.eu.int. 14.

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63. In short, the Ombudsman does not 61. From that point of view, the Ombuds- offer any legal protection in the proper man does not have the characteristics of a sense. The Ombudsman is to be regarded as court or tribunal. Furthermore, while the an administrative body whose task — Ombudsman has the power to make critical primarily via complaints — is to identify remarks as a result of a complaint, they are in the public interest instances of malad- intended not to satisfy the complainant, but ministration by the Community institutions to serve the public interest instead. and to help to put an end to that malad- ministration. 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. 62. I would also point out here that the Ombudsman can carry out inquiries on his own initiative. The fact that he has the 7 — See, on this subject, paragraphs 1.1.1 and 1.2.1 of the power to do so indicates that the Ombuds- Ombudsman's Annual Report tor 1995, cited in footnote 5. 8 — See paragraph 1.4 of the Ombudsman's Annual Report for man is to be regarded as an administrative 1995, cited in footnote 5.

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C — The complaints procedure in detail 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 64. As I said, citizens are not given any that opinion. The Ombudsman then legal protection comparable to the legal reaches a decision which — and this is the protection provided by the courts. The only right that the complainant has at this Ombudsman has largely investigative stage — is sent to the complainant. 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'.

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Instance, as a result of which the deadline 71. I cannot agree with the opinion of the for bringing an action expired. In Commu- Ombudsman himself and the European nity law Article 2(5) of Decision 94/262 Parliament that it is the task of the allows the Ombudsman to advise the European Parliament to review the person lodging the complaint to address it Ombudsman's performance of his duties. to another authority. Community law does Article 195 EC does not provide for such not, however, give the complainant a review. Only in very exceptional circum- specific right to be referred. stances can the European Parliament pro- pose to the Court that the Ombudsman be dismissed, but that would not be as a result of a review of the Ombudsman's perform- ance 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. 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?

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 78. As I stated earlier (see point 65), that case it would not be a review of Community law grants citizens certain performance of duties, but legal protection rights in the procedure before the Ombuds- for the individual whose interests have been man. It is not inconceivable that the right to directly affected by that action. effective judicial protection means that the citizens in question must be able to appeal

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. D), 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 76. The EC Treaty does not allow fot- of individuals with regard to the processing of personal data appeal against decisions of the Ombuds- by the Community institutions and bodies and on the free movement of such data (OJ 2001 L. 8, p. 1). man. He is not referred to in Article 230 10 — See, among others. Case C-50/00 P Union de Pequeños EC, or in any other provision of the Treaty Agriculiores v Council [2002] ECR I-6677, paragraph 39.

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necessary extension of the principle of damage arising from that breach has been effective judicial protection and access to caused by the actions of a Community body the courts. 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 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.

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89. I also agree with this analysis, even which, without even including an argument though I would prefer to talk of reprehen- specifically identifying the error of law sibility rather than (in)excusability. If the allegedly vitiating the contested judgment, law breached is clear and precise, the confines itself to reproducing the pleas in Ombudsman may be liable. As I explain law and arguments previously submitted to from point 129 below with reference to the the Court of First Instance. Such an appeal present case, account must be taken not just amounts in reality to no more than a of the wording, but also of the purpose of request for re-examination of the applica- the rule of law breached. tion 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 V I I I— Assessment of the scope of the words cited here that Mr Lambert's appli- appeal findings cation to have the judgment of the Court of First Instance set aside may not be exam- ined.

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the main appeal specifically seeks to chal- 96. In assessing that point of law the Court lenge the position adopted by the Court of may also examine the point raised by Mr First Instance on various points of law Lamberts as to whether the Ombudsman raised before it at first instance. 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 94. The appeal must clearly indicate which Instance made errors of appraisal (see point aspects of the judgment under appeal are 48 of this Opinion) in its assessment of criticised and the pleas in law and argu- what actually happened during the com- ments on which the appeal is based. That plaints procedure before the Ombudsman. brings me to the present proceedings. Mi- Here Mr Lamberts is essentially seeking a Lamberts attempts to show that the Court re-examination of the facts, which is out- of First Instance breached Community law, side the scope of an appeal. I therefore and he particularly refers for that purpose propose that the Court declare inadmissible to a number of specific points in the the complaint concerning errors of apprai- disputed judgment. sal.

Instance, or whether it is introducing a and claims that judicial review of the completely new point. 21 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 Com- munity judicature. The European Parlia- ment adduces similar arguments. 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 102. As I indicated earlier (point 73), I is now submitting the letter in support of consider this position to be fundamentally his earlier claim. The letter illustrates the wrong. The European Parliament does not fact that review by the European Parliament review the Ombudsman's performance of is not of the same nature as judicial review. his duties in individual cases, and its In short, the Court may include the letter of authority here is of no relevance to review 17 December 1999 in its appraisal. by the Community judicature.

IX — Assessment of the admissibility of the action at first instance 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 Com- munity institutions or their servants in the performance of their duties. The Court of A — The nature of the compensation Justice has jurisdiction in disputes on that procedure and the Ombudsman's liability subject (Article 235 EC). That jurisdiction is not subject to any restrictions.

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 108. Seen from the citizen's point of view, of) the institutions of the European Com- if he suffers damage as a result of a munities and their servants. As the Court of Community body's action or failure to First Instance rightly states in the contested act, he must be able to hold that body judgment, 'The term also covers... all other liable. A procedure must be available to Community bodies established by the him in law to assert his claim for liability in Treaty and intended to contribute to a direct and simple manner. That is the achievement of the Community's objectives. purpose of Article 235 EC. It makes no Consequently, measures taken by those difference to the citizen which body caused bodies in the exercise of the powers him damage, nor is it relevant in the assigned to them by Community law are performance of which duty that damage attributable to the Community, according occurred. to the general principles common to the Member States referred to in the second paragraph of Article 288 EC'. 22

109. Viewed in that light I cannot agree with the very conservative opinions which the Ombudsman and the European Parlia- 106. I would point out that the Court's ment have put forward in these proceedings jurisdiction in actions for compensation on the subject of the Ombudsman's liabi¬

22 — See paragraph 49 of the judgment of the Court of First Instance, where reference is made to the Court's judgment 23 — See, for example, Case C-275/00 First and Franex [2002] in Case C-370/89 SGEEM and Etroy v EIB [1992) ECR ECR I-10943, paragraph 43. I-6211, paragraphs 12 to 16. 24 — See also point 79 above.

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 Ombuds- 114. That claim brings me to the condi- man's action or failure to act causes tions which the Court uses for presuming damage. I would therefore have found it liability for public action, irrespective of appropriate to the Ombudsman's duties if whether it relates to the conduct of a he had advocated the broadest possible Community body or a national authority liability. The same applies to the European (see point 84 above). According to settled Parliament, which is elected by the citizens case-law the Community can be non-con- of the European Union. tractually liable and there can be entitle- ment to compensation for the damage suffered only if a number of conditions are met: the conduct of which the Commu- nity institutions are accused must be unlaw- ful as a result of a sufficiently serious infringement of a rule of law, the rule of 111. In short, the Ombudsman may be law infringed must be intended to confer held liable for his actions under Article 235 rights on individuals, the damage suffered in conjunction with Article 288 EC. There must be real and there must be a causal link is no restriction arising from Community between the conduct and the damage law. suffered.

112. When establishing the unlawfulness of the Ombudsman's conduct, account 115. It flows from this that an appraisal of must naturally be taken of the particular the lawfulness of the action at the root of function which the Ombudsman is required that damage is essential for establishing to fulfil. whether there is public liability, since the

118. That being the case, Parliament's claim that only measures by the Commu- 116. In short, if the Community judicature nity that have legal consequences can give could not test the lawfulness of the action of rise to compensation must also be dis- an institution, the procedure under Article missed. 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 119. The Community judicature also need protection which is recognised in Commu- not show restraint in its assessment. nity law. Restraint of assessment relates to a different issue in the present case. As the Court of First Instance rightly states, the Ombuds- man 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 require- 117. I therefore do not agree with the ment that the breach be sufficiently serious position of the Ombudsman and the then comes into play. The Court uses as a decisive test for this whether a Community institution manifestly and gravely disre- 2 garded the limits on its discretion. Where 25 — Sec C a s e C- 37/98 P Dorsch Consult vCounciland Commission [2000] ECR I-4549, paragraphs 18 and 19. the institution in question has only con-

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 122. I agree with the Ombudsman's posi- application related to the conduct of the tion in so far as he contends that he cannot Ombudsman himself. Whether the Ombudsman's conduct did actually cause the alleged damage is a question that must 26 — See Bergaderm and Goupil, cited in footnote 15, para- be answered when assessing the merits of gtaphs 43 and 44. the claim, not when assessing admissibility.

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D — Conclusion — the damage suffered is real, and

125. On the basis of the above considera- tions I have reached the conclusion that the application at first instance was correctly — there is a causal link between the ruled admissible by the Court of First conduct and the alleged damage. Instance. The Ombudsman's appeal must therefore be dismissed.

Below I shall look at the first two criteria together, which mainly concern unlawful- ness, and the third and fourth criteria together, which both relate to damage. X — Substance

B — Referral to another competent author- ity 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 129. Article 2(5) of Decision 94/262 and too must show in the performance of his Article 2.5 of the implementing provisions duties may require him to make use of that provide only that the Ombudsman has the power, certainly in a case such as the power, not the obligation, to refer a present where the person concerned has a complainant. Referral is thus primarily deadline for bringing an action before the formulated as a service which the Ombuds- Community judicature. It is true that failure man performs for the complainant, rather to refer a complainant does not deprive him than as an administrative duty. From that of access to the judicature, but in doing so point of view, if the Ombudsman does not the Ombudsman is not acting in accordance refer a complainant he is still within the with one of the aims for which the body of limits of his discretion and there is thus no Ombudsman was set up. He ought to make question of a sufficiently serious breach of it as easy as possible, not more difficult, for Decision 94/262 and the implementing the citizen to obtain satisfaction. The provisions. principle of due care therefore means that the Ombudsman should take his power of referral seriously.

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 132. I now come to the question of in accordance with the wording of a whether that lack of due care also involves

135. Article 6 of the implementing provi- sions regulates friendly settlements. The Ombudsman is required to seek a friendly settlement, which he does by working with the institution where maladministration has 134. For the sake of completeness I would been established. The search for a friendly also make the following point. The choice settlement is, for the complainant, the most which a citizen has of applying either to the important instrument that the Ombudsman judicature or to the Ombudsman is not, by possesses. Nevertheless it is nothing more definition, a choice between the greater (the than a search, and the Ombudsman has judicature) and the lesser (the Ombuds- very wide discretion to assess whether a man). In many disputes between a govern- friendly settlement is possible and whether ment body and a citizen a mediation it is likely to succeed. procedure is more appropriate than pro- ceedings 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 136. That wide discretion in inherent in the competition as it sees fit, within the limits nature of the procedure before the of Community law, of course. Formally Ombudsman, which primarily involves

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mediating between parties. A mediator may pretation of Community law. The Court be expected to use his best endeavours, but may therefore find Mr Lamberts's present cannot be expected to achieve a result. That appeal unfounded. 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.

142. That brings me to the causal link. The from the Commission's action, Mr Lam- damage claimed by Mr Lamberts arises berts also claims non-material damage from a decision of the Commission, not the arising, according to paragraph 61 of the conduct of the Ombudsman. Mr Lamberts Court of First Instance's judgment, from the claims that he suffered damage as a result of injurious and destructive effects of the the fact that he failed the competition and Ombudsman's breaches of administrative was therefore unable to enter service with duty in dealing with his case. Viewed in that the Commission. It is not within the manner a causal link does exist with the Ombudsman's competence to review the non-material damage. This application for Commission's decision. In other words, non-material compensation appears from there is no causal link between the Mr Lamberts's claim not to be separate, but Ombudsman's conduct and the occurrence is in addition to the material damage of the damage. suffered. Should the Court come to assess the damage, the application for non-mate- rial damage need not be assessed separately.

143. I would also point out that, in addition to the material damage resulting

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.