(Appeal — Non-contractual liability of the European Union — Handling by the European Ombudsman of a complaint concerning the management of a list of suitable candidates in an open competition — Breaches of the duty to act diligently — Concept of a ‘sufficiently serious breach’ of a rule of EU law — Non-material damage — Loss of confidence in the office of the European Ombudsman)
SOURCE: Court of Justice of the European Union, Annual report 2017
In its judgment of 4 April 2017, Ombudsman v Staelen, the Court, sitting as the Grand Chamber, ruled, in the context of an appeal, on the non-contractual liability of the European Union on account of a breach of the duty to act diligently by the European Ombudsman in her handling of a complaint. In the judgment under appeal, the General Court had found that some breaches of the duty to act diligently, committed by the European Ombudsman in her handling of a complaint concerning the European Parliament’s management of a list of suitable candidates in an open competition, amounted per se to sufficiently serious breaches of EU law, within the meaning of the case-law defining the conditions under which the European Union may incur non-contractual liability. As a consequence of those breaches, the General Court had awarded the complainant, who appeared on the list at issue as a successful candidate, EUR 7 000 as damage for her loss of confidence in the office of the Ombudsman and her feeling of wasted time and energy.
After recalling the duties and obligations of the Ombudsman, the Court first of all held that the General Court had erred in law by ruling that a ‘mere’ breach by the Ombudsman of the principle of diligence amounts to a sufficiently serious breach that could result in non-contractual liability being incurred by the European Union. According to the Court, in order for it to be concluded that there is a such a breach, it is 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. As regards the finding of damage made by the General Court, the Court also ruled that the General Court had erred in law by characterising the loss of confidence in the institution of the Ombudsman alleged by the complainant as non-material damage that may be compensated. Since there was no legal basis for the General Court’s decision to order the Ombudsman to pay compensation, that decision was set aside by the Court.
However, since the state of the proceedings permitted a final judgment in the case, the Court held that it was apparent from the documents before it that the Ombudsman had indeed committed several sufficiently serious breaches of her duty to act diligently in the conduct of her investigations, causing the complainant actual and certain non-material loss. Thus, the Court again ordered the Ombudsman to pay EUR 7 000 in damages in order to compensate that non-material loss in relation, in essence, to the feeling of ‘psychological harm’ which the complainant claimed to have experienced as a result of the way in which her complaint was dealt with.