Provisional text

17 June 2025 (*)

( Action for annulment – Decision of the Ombudsman not to open an inquiry following a complaint – Act not open to challenge – Manifest lack of jurisdiction in part – Manifest inadmissibility in part )

In Case T‑615/24,

Asociación de ciudadanos contra la corrupción y para la defensa del estado de derecho,

applicant,

European Ombudsman,

defendant,

THE GENERAL COURT (Second Chamber),

composed of A. Marcoulli (Rapporteur), President, V. Tomljenović and L. Spangsberg Grønfeldt, Judges,

Registrar: V. Di Bucci,

makes the following

By its action under Article 263 TFEU, the applicant, Asociación de ciudadanos contra la corrupción y para la defensa del estado de derecho, seeks, in essence, annulment of the decision contained in the European Ombudsman’s letter of 3 October 2024 not to open an inquiry and to take no further action on complaint 1604/2024/LA (‘the contested decision’).

The applicant claims, in essence, that the Court should:

–declare the Ombudsman’s inaction to be contrary to EU law;

–order the re-examination of the complaint lodged by the applicant and the opening of an inquiry;

–restore equality for all citizens before the law.

Law

Under Article 126 of the Rules of Procedure of the General Court, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible, it may decide to give judgment by reasoned order without taking further steps in the proceedings.

In the present case, the Court considers that it has sufficient information available to it from the material in the file and decides, pursuant to that article, to rule without taking further steps in the proceedings.

The first head of claim

At the outset, it should be noted that, as is apparent from the action as a whole, the applicant seeks annulment of the contested decision under Article 263 TFEU, in so far as the Ombudsman took no further action on the complaint which it submitted, without opening an inquiry. Consequently, although the applicant also claims to base its action on Article 265 TFEU, in that it states that it is bringing an action for failure to act against the contested decision and that, by its first head of claim, it is asking the Court to declare the Ombudsman’s alleged inaction to be contrary to EU law, it must be stated that such a request does not relate, in reality, to an alleged failure by the Ombudsman to address to that person an act within the meaning of the third paragraph of Article 265 TFEU, but is indistinguishable from the request seeking annulment of the contested decision, in so far as the Ombudsman decided to take no further action on its complaint and not to open an inquiry. Accordingly, the first head of claim must therefore be regarded as being based on Article 263 TFEU and seeking annulment of the contested decision.

As regards that application for annulment, as a preliminary point, it should be borne in mind that it is apparent from the file before the Court that the applicant, on 28 August 2024, submitted a complaint against the European Commission to the Ombudsman. After first acknowledging receipt of the complaint and requesting information from the applicant, the Ombudsman informed the applicant, by letter of 18 September 2024, that, after examining the complaint, there was insufficient evidence to open an inquiry and that the complaint would be closed. After receiving a request from the applicant, the Ombudsman, by email of 27 September 2024, reiterated her previous reply. After receiving a further request from the applicant, the Ombudsman, by the contested decision, noted her previous replies and responded to the applicant’s request that she launch an inquiry on her own initiative.

Irrespective of the extent to which the contested decision merely confirms the decision of 18 September 2024, it must be stated that the contested decision – like that of 18 September 2024 – does not constitute a challengeable act for the purposes of Article 263 TFEU.

In that regard, it should be borne in mind that it follows from Article 228 TFEU and Articles 2 to 4 of Regulation (EU, Euratom) 2021/1163 of the European Parliament of 24 June 2021 laying down the regulations and general conditions governing the performance of the Ombudsman’s duties (Statute of the European Ombudsman) and repealing Decision 94/262/ECSC, EC, Euratom (OJ 2021 L 253, p. 1) that the Ombudsman is to investigate complaints she receives in respect of instances of maladministration in the activities of the institutions, bodies, offices or agencies of the European Union and to conduct inquiries for which she finds grounds (first and second subparagraphs of Article 228(1) TFEU). In particular, the Ombudsman is to dismiss complaints which are outside the scope of her mandate or which do not comply with certain procedural requirements (Article 2(4) of the Statute of the Ombudsman); where she finds that a complaint is manifestly unfounded, she is to close the file and inform the complainant (Article 2(5) of that statute) and, where she finds grounds for it, she may decide to open an inquiry (Article 2(7) and Article 3(1) of that statute). In that context, she is to inform the complainant as soon as possible of the action taken on the complaint and may propose to the complainant and to the EU institution, body, office or agency concerned a solution to address the instance of maladministration to which the complaint relates; if that solution is accepted by that EU institution, body, office or agency, she may close the file (Article 2(10) of that statute). Where an instance of maladministration is found following an inquiry, the Ombudsman is to inform the institution, body, office or agency concerned of the findings of the inquiry and, where appropriate, make recommendations (Article 4(1) of that statute). Following that communication, the institution, body, office or agency concerned has three months to send the Ombudsman a detailed opinion (Article 4(2) of that statute), following which the Ombudsman may close the inquiry and forward to the institution, body, office or agency concerned, and in certain cases to the European Parliament, a report in which she may make recommendations. Lastly, the Ombudsman is to inform the complainant of the outcome of the inquiry, the opinion received and any recommendations made in the report (Article 4(3) of that statute).

It therefore follows from those provisions that the Ombudsman merely informs the complainant as soon as possible of the action taken on his or her complaint and that, where she detects an instance of maladministration, after referring the matter to the institution, body, office or agency concerned, she is simply to inform the complainant of the outcome of the inquiry and of the opinion given by the institution, body, office or agency concerned and of any recommendations that they have made (see, by analogy, order of 26 February 2019, Rimlinger v European Ombudsman, T‑676/18, not published, EU:T:2019:125, paragraph 10).

In particular, after examining a complaint, the Ombudsman does not have the power to take binding measures and the report which she sends to the institution, body, office or agency concerned where she identifies an instance of maladministration is limited to establishing the existence of such an instance and, where appropriate, making recommendations. Thus, that report does not, by definition, produce any legal effects vis-à-vis third parties, within the meaning of Article 263 TFEU, nor is it binding on the institution, body, office or agency concerned, which is free to decide, in the exercise of the powers conferred on it by EU law, what action to take in that regard (see, by analogy, order of 26 February 2019, Rimlinger v European Ombudsman, T‑676/18, not published, EU:T:2019:125, paragraph 11 and the case-law cited). In that context, the Ombudsman does not have the power to make binding decisions (see, to that effect, judgments of 25 October 2007, Komninou and Others v Commission, C‑167/06 P, not published, EU:C:2007:633, paragraphs 36 and 44, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 245).

It follows that the Ombudsman’s reasoned decision to close the examination of a complaint by taking no further action on it, including where no inquiry has been opened, does not constitute a challengeable act by means of an action for annulment, since such a decision does not produce legal effects vis-à-vis third parties, within the meaning of Article 263 TFEU (see, by analogy, order of 26 February 2019, Rimlinger v European Ombudsman, T‑676/18, not published, EU:T:2019:125, paragraph 12 and the case-law cited).

Thus, since, by the contested decision, the Ombudsman informed the applicant of the reasons for taking no further action on its complaint, without opening an inquiry, and even of the reasons why she would not be opening an inquiry on her own initiative, that decision does not constitute a challengeable act for the purposes of Article 263 TFEU.

Consequently, the first head of claim, seeking annulment of the contested decision, must be rejected as manifestly inadmissible.

Furthermore, for the same reasons, assuming that the first head of claim has a different scope from the request for annulment of the contested decision and seeks a declaration, by way of an action for failure to act based on Article 265 TFEU, that the Ombudsman failed to open an inquiry, or to send a report and recommendations to the Commission, it must be stated that such acts cannot be the subject of an action for failure to act under the third paragraph of Article 265 TFEU. The action for failure to act seeks to penalise the failure to adopt a legally binding act (see, to that effect, judgment of 23 March 2004, Ombudsman v Lamberts, C‑234/02 P, EU:C:2004:174, paragraph 59). As is apparent from paragraphs 8 to 11 above, the Ombudsman does not take binding measures in relation to the complainant, or indeed to the institution, body, office or agency concerned. Consequently, such an action for failure to act and such a head of claim – even if, in the present case, their scope is independent of and different from the request for annulment of the contested decision – should also be rejected as manifestly inadmissible.

The second and third heads of claim

By its second and third heads of claim, the applicant asks the Court to order (i) the re-examination of the complaint, (ii) the opening of an inquiry and (iii) the restoration of the ‘equality of all citizens before the law’.

In that regard, it is sufficient to point out that, when exercising judicial review of legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union, even where they concern the manner in which its judgments are to be complied with (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited).

It follows that the second and third heads of claim must be rejected on the ground of manifest lack of jurisdiction.

It follows from the foregoing considerations that the present action must be dismissed in part on the ground of manifest lack of jurisdiction and in part as manifestly inadmissible, without it being necessary for it to be served on the Ombudsman.

Costs

Since the present order was adopted before service of the application on the Ombudsman and before the latter could have incurred any costs, it is sufficient to decide that the applicant must bear its own costs, in accordance with Article 133 of the Rules of Procedure.

On those grounds,

hereby orders:

1.The action is dismissed in part on the ground of manifest lack of jurisdiction and in part as manifestly inadmissible.

2.Asociación de ciudadanos contra la corrupción y para la defensa del estado de derecho shall bear its own costs.

Luxembourg, 17 June 2025.

Registrar

President

* Language of the case: Spanish.