Costs of complaints to the Ombudsman and damages: Case C-331/05 P

What an indefatigable litigant. In Case C-331/05 P Internationaler Hilfsfonds eV v. Commission the Court of Justice dismissed an appeal against a judgment of the Court of First Instance rejecting a claim in damages to recover costs incurred in pursuing a a complaint before the Ombudsman.

In its judgment in Case T-294/04 Internationaler Hilfsfonds v. Commission the Court of First Instance dismissed as as manifestly unfounded its application under the second paragraph of Article 288 EC for an order that the Commission should compensate for the damage allegedly suffered comprising the lawyers’ fees incurred in three sets of complaint proceedings before the European Ombudsman.

Then, Internationaler Hilfsfonds appealed to the Court of Justice.

The Court of Justice dismissed the appeal.

The Court drew a distinction between costs of judicial proceedings which are recoverable under Article 91(b) of the Rules of Procedure of the Court of First Instance only if they are necessary for the proceedings and loss and damage incurred as a result of pursuing a claim before the Ombudsman that could be compensated under Article 288 EC.

But the Court held that it is not possible to establish a direct causal link between the wrongful act of an institution and loss and damage incurred by pursuing the case with the Ombudsman. The Court pointed out that a complainant is free to choose to have recourse to the Ombudsman. The costs thus freely incurred by the complainant cannot therefore be regarded as damage caused by the institution in question. Costs incurred in litigation are different: They must be incurred if the litigant is to obtain a binding decision to recognize the litigant’s rights and to oblige the institution concerned to give effect to them.