The background to the complaint

1. The present case concerns the handling by the Court of Justice (hereinafter, the 'Court') of the complainant's request for information.

2. On 21 September 2011, the complainant sent a letter to the President of the Court. In his letter, he asked various questions concerning the legal position of parties to proceedings before the Court, the General Court, and the Civil Service Tribunal (hereinafter, the 'CST') in relation to the composition of chambers hearing a case, in particular when they suspect a possible bias of judges. More specifically, he wanted to know:

(1) when and how parties to proceedings are informed of the exact composition of the chamber hearing their case;

(2) which remedies are at their disposal in case they suspect that one or more judges are biased;

(3) which remedies are available in case a challenge for bias is rejected; and

(4) where the rules governing the above issues are to be found.

3. The Court replied on 28 September 2011 and essentially stated that each of the courts has its own rules on the composition of chambers. With respect to the composition of its own chambers, the Court referred to Articles 11a-11e of its Rules of Procedure. It moreover explained that parties are informed of the composition of the chamber hearing their case after that case has been dealt with in the course of its general meeting. The Court went on to state that Article 18 of the Statute of the Court of Justice of the European Union (hereinafter 'the Statute') lists reasons for which judges may not take part in hearing and deciding a case. That article is binding on the three courts mentioned above.

4. Since he considered the Court's reply to be incomplete, the complainant, in a further letter dated 28 September 2011, pointed out that it was not clear whether the Court's reply concerned all three courts and noted that he had asked about relevant rules in relation to all three of them. He added that, in any event, the reply to his first question was incomplete, given that he had also asked about how parties are informed of the composition of the chamber. He also wished to know whether the General Court or the CST may take any decisions before the parties have been informed about the composition of the chamber hearing their case. As regards the remaining questions raised in his letter of 21 September 2011, the complainant considered that the Court had not addressed them at all.

5. On 7 October 2011, the Court informed the complainant that it could not give legal advice in individual cases. It stated that it therefore had nothing to add to the information provided in its previous letter.

6. In an e-mail to the Court dated 18 October 2011, the complainant pointed out that, as a Union citizen, he has a right to receive information from the EU institutions. He asserted that his questions did not concern any individual cases, but general rules.

7. On 18 October 2011, the Court informed him that it would not provide him with any further information in relation to the matter at hand.

8. On 25 October 2011, the complainant submitted the present complaint to the European Ombudsman.

The subject matter of the inquiry

9. In his complaint, the complainant submitted the following allegation and claim.

Allegation:

The Court failed fully to address the questions raised in the complainant's letter of 21 September 2011.

Claim:

The Court should provide him with a complete and comprehensive reply to the questions raised in the aforesaid letter.

The inquiry

10. On 11 November 2011, the Ombudsman’s services informed the complainant that the Ombudsman had decided to open an inquiry into the complaint and had instructed them to seek a rapid solution to the issue at hand, by giving the Court the opportunity to address the complainant's concern.

11. In a letter to the Ombudsman's services dated 9 December 2011, the Court provided further information on its position.

12. The Court's letter was forwarded to the complainant for observations, which he sent on 13 December 2011.

13. After analysing the Court's letter and the complainant's observations, the Ombudsman considered that the present case raised legal issues which merited a full inquiry. Therefore, on 24 January 2012, he invited the Court to submit an opinion on the complainant's allegation and claim. In his letter, the Ombudsman also pointed out that the reasons invoked by the Court, namely, that it: (i) cannot give legal advice in individual cases; and (ii) needs to respect the principle of impartiality, do not seem to explain why the Court considers itself not to be in a position fully to reply to the complainant's questions, which appear to be of a general nature. The Ombudsman therefore asked the Court, in case it still wished to maintain its position that it cannot provide further information for the above reasons, to specify these reasons.

14. The Court's opinion was forwarded to the complainant with an invitation to submit observations. The complainant did so on 14 June 2012.

15. On 11 March 2013, the Ombudsman submitted a friendly solution proposal to the Court to which the Court replied on 30 April 2013. The Court's reply was forwarded to the complainant with an invitation to submit observations which he sent on 25 June 2013.

The Ombudsman's analysis and conclusions

Preliminary remarks

16. Given their factual and logical connection, it is appropriate to consider the complainant's allegation and claim together.

A. As regards the complainant's allegation and claim

Arguments presented to the Ombudsman

17. The complainant alleged that the Court failed fully to address the questions raised in his letter of 21 September 2011. He claimed that the Court should provide him with a complete and comprehensive reply to the questions raised in the aforesaid letter.

18. In its letter of 9 December 2011, sent following the intervention of the Ombudsman's services, the Court explained that, in 2007, the European Commission appointed the complainant as an official in function group AD. The complainant disagreed with the grade in which he was classified and contested the Commission's decision. His complaint against the Commission's decision was rejected, whereupon the complainant brought an action for annulment before the CST, which dismissed his action. The complainant then brought an appeal against the judgment of the CST which was dismissed by the General Court. The Court noted that, at that moment, the complainant had exhausted all remedies available to him.

19. Referring to the questions the complainant sent to the President of the Court on 21 September 2011, the Court pointed out that the complainant avoided making any reference to the aforesaid court cases and added that he likewise avoided making such reference in his complaint to the Ombudsman. In view of the nature of the questions asked, the Court took the view that it could not be ruled out that the complainant sought to continue his unsuccessful cases.

20. Against this background, the Court stated that, in line with its established practice, it does not provide legal advice in individual cases so as to rule out any appearance of partiality. It was for this reason that the Court's Registry, on 28 September 2011, provided the complainant with "objective and neutral information", which could not give any appearance of partiality. Thus, in reply to the complainant's first question, the Court explained its procedure concerning the composition of chambers, without providing further information on the relevant procedures before the CST and the General Court, which had dealt with cases brought by the complainant. In reply to the complainant's questions (2)-(4), the Court referred to Article 18 of the Statute, which deals with instances of possible bias by judges.

21. The Court noted that the complainant had rejected its reply, whereupon it informed him, on 7 October 2011, that it cannot give legal advice in individual cases. The Court maintained its position in its reply of 18 October 2011 to the complainant's further letter of the same date. The Court concluded by saying that, bearing in mind available remedies provided for in the Treaties, the right to information needs to be balanced by the need for it to be impartial. The Court therefore submitted that, under the aforesaid legal constraints, its replies were as complete as possible.

22. In his observations on the Court's reply, the complainant pointed out that he had seen no need to mention his court cases in his letter to the President of the Court, given that, as recognised in the Court's letter, those cases were closed and there were no further available remedies. As regards the Court's statement that he might seek to proceed with these cases, he took the view that this amounted to nothing but wholly unjustified speculation. Given that his cases had been closed by a court of last instance, his request for information should have been dealt with in the same way as a request by any other Union citizen.

23. The complainant moreover submitted that the questions he raised were of a general nature and did not cover any of the aspects raised in his court cases. The Court was therefore wrong to assume that he had requested legal advice in an individual case. The Court's reference to Article 18 of the Statute was insufficient, given that that provision does not shed light on questions such as when and where a challenge for bias would have to be filed.

24. The complainant took the view that, given the importance of points of procedure, in particular before and during court proceedings, it was not acceptable that the Court refused to provide information on essential procedural issues. Even if cases brought by the complainant were still pending, which was not the case, the Court, in the interest of fairness, would still have been required to provide information that was not otherwise publicly available. If the Court refused to provide such information to a former applicant, this meant that the latter was being discriminated against, as compared to persons who have never been applicants requesting information.

25. In conclusion, the complainant took the view that the Court's reply was not in conformity with the rule of law and principles of good administration. He also voiced the suspicion that his request for information raised a sensitive matter, namely, that (i) essential procedural matters were not subject to relevant rules or (ii) the Court sought to cover up an essential procedural error in the proceedings he had brought. The complainant submitted that it would be scandalous if the latter hypothesis were true. He asked the Ombudsman to ensure that the Court fully respects its obligation to provide information in a non-discriminatory manner.

26. In its opinion, the Court pointed out that, through its opinion, it intended to give the complainant certain additional information as regards his first question and provide reasons in support of its view that it cannot furnish any further information as regards his questions (2)-(4).

27. As regards the complainant's first question, the Court pointed out that, in its letter to the complainant dated 28 September 2011, it explained that parties are informed of the composition of the chamber hearing their case after that case has been dealt with in the course of its general meeting. In that letter, it also stated that each of the Union courts has its own rules on the composition of chambers. According to the Court, the complainant should have interpreted this statement to amount to an implicit invitation to contact, as far as his first question was concerned, the General Court and the CST. The Court then went on to state that, regardless of whether or not the complainant was entitled to request it to provide the information he had asked for concerning the General Court and the CST, it proceeded, in a spirit of transparency and cooperation with the Ombudsman, to request relevant information from the Registries of the General Court and the CST. The Court provided details as to the point in time when parties receive relevant information as well as on the extent of such information.

28. As regards the remainder of the complainant's questions (2-4), the Court considered that answering them requires identifying, applying and interpreting legal principles and provisions ("l'identification, l'examen et l'interprétation de principes ou règles de droit"). At the same time, it submitted that there is no obligation comprehensively to reply to Union citizens who request it to answer questions of the kind the complainant put to it.

29. The Court pointed out that it contributes to the knowledge and understanding of EU law by disseminating its case-law in various ways, for instance through its website, which provides for a targeted access to case-law. As regards the provisions governing the procedure of the Union courts, the Court explained that the Union courts have clarified certain provisions of their rules of procedure by means of instructions to the Registrar. Moreover, they have issued practice directions designed to enable the parties' representatives to take account of certain formal requirements. The Court pointed out that these instruments have been published in the Official Journal of the EU and are available on its website.

30. The Court submitted that there is no EU law principle or rule imposing a general duty on it to assist Union citizens in identifying rules governing a particular issue, all the more since Union citizens are not entitled to ask the Court to interpret legal principles and rules outside the precisely circumscribed framework of court proceedings initiated in line with the Treaty on the Functioning of the EU and the Court's internal rules. The Court added that if it were to give information outside this framework, it would risk giving rise to legitimate expectations in respect of a particular legal solution, which possibly would not correspond to the solution adopted in a later decision of the Court.

31. The Court also submitted that Union citizens could request assistance concerning the enforcement of their rights from attorneys and legal advisors whom the Union courts cannot replace. If they were to do so, the Union courts would exceed the limits of their mandate and breach their duty of impartiality. The Court also pointed out that the internal rules of the Union courts provide that applicants in proceedings before them must be represented by lawyers. While the registries of the three Union courts could, upon request, provide the parties' representatives with information on its practice concerning the rules of procedure, the instructions to the Registrar or the practice directions[1], they cannot provide legal expert opinions to Union citizens, whether the questions raised are of a general nature or, alternatively, concern a particular case.

32. The Court concluded by saying that, as a result of the limits and constraints flowing from the nature of its mandate and completely independently of the cases brought by the complainant, it is not in a position to provide any additional information in reply to his questions 2-4.

33. In his observations, the complainant stated that he considered the arguments submitted by the Court to be partly incorrect and partly legally unfounded. He added that the Court's line of reasoning markedly differed from the position it had taken earlier.

34. As to the Court's position in relation to his first question, the complainant considered its view that it had implicitly invited the complainant to turn to the other courts to amount to a vain attempt to justify its behaviour. According to the complainant, the Court should have explicitly informed him that he should have addressed his questions to the other courts. Moreover, his letter had been addressed to the Court as an institution encompassing all the courts that form part of that institution. The complainant also noted that, on 7 October 2011, the Court had refused to provide any further information, and it had not invoked any invitation to turn to the other courts. At any rate, the Court, in line with principles of good administration, should have forwarded his letter to the other courts. However, this did not happen and he contended that the Court, as an institution, refused to provide the information requested.

35. As to the Court's position that information on the composition of the chambers was available on its website, the complainant noted that the website only contains a link to a document published in the Official Journal, according to which, the Appeal Chamber is composed of the President of the Court and, in rotation, two Presidents of Chambers[2]. However, this information did not allow interested parties to learn about the actual composition of the Appeal Chamber and no further information was available on the internet. The Court's position was thus incorrect. According to the complainant, the Court itself conceded this when it pointed out that the composition of the Appeal Chamber was only communicated to parties upon request. However, this left open the complainant's question as to where this information could be found and when such request would have to be made. Since such information is lacking, parties would have to assume that they would be properly informed by the Court in due time. The complainant added that it would be very surprising if parties had no possibility of knowing in advance that they would have to submit a request to be informed of the actual composition of the Appeal Chamber. Given that this could hardly be justified by the rule of law, it was astonishing that the Court did not refer to any rules governing its procedure.

36. As to the Court's position in relation to his questions (2)-(4), the complainant disagreed with its view that answering them would necessitate identifying, applying and interpreting legal principles and provisions, which it was not obliged to do. The complainant put forward that, contrary to what the Court stated, he did not raise a specific question of law in the framework of a legal dispute, but instead merely asked to be informed about the relevant rules. Moreover, he insisted that he had requested information which was not available on the Court's website. Replying to the questions raised was also clearly to be distinguished from deciding on the legal issues raised by an actual challenge for bias. Instead, the complainant's questions concerned issues of a general nature. Thus, the question as to which remedies are at the disposal of parties to proceedings in case they suspect possible bias and the one concerning which remedies are available against the decision rejecting a challenge for bias would have to be answered in a general manner and regardless of an individual dispute.

37. If, on the other hand, such issues were decided upon on an ad hoc basis, this could hardly be reconciled with the rule of law. The complainant referred to the German legal order where the code of civil procedure contains rules governing this issue. It would be astonishing if such issues were left to be decided on a case-by-case basis, considering that, in the complainant's view, the Court regulates other issues which constrain the freedom of parties to disputes in minute detail. However, if there are indeed no such rules, the Court should have stated so in a clear and unambiguous manner.

38. If, on the other hand, such rules are available, it would have been easy for the Court to answer the fourth question, in particular by simply referring to the relevant documents. Given that it is improbable that no rules exist on the matter, the complainant submitted that it is likely that the Court did not comply with its duty to provide information.

39. The complainant concluded by saying that both the EU Treaty and the European Convention on Human Rights contain far-reaching obligations to provide information. Moreover, the rule of law embodies access to courts and the right to a fair trial which, in turn, require that procedural rules are either publicly available or are made available on request. If parties to proceedings only learn about the composition of the Appeal Chamber from an order or judgment of the Court, they would be deprived of the possibility of challenging the composition of that chamber on the grounds of bias. However, a fair procedure depends on relevant information being available to the parties. It would therefore be absolutely unthinkable that the highest courts in the EU could do without relevant rules, which in Germany are applicable to any court of lower instance.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

40. Pursuant to the fourth paragraph of Article 24 of the Treaty on the Functioning of the European Union (TFEU), every Union citizen may write to any of the institutions in one of the official languages and have an answer in the same language. Article 41(4) of the Charter of Fundamental Rights of the EU contains an analogous provision. Article 22(1) of the European Code of Good Administrative Behaviour provides that "[t]he official shall, when he has responsibility for the matter concerned, provide members of the public with the information that they request. When appropriate, the official shall give advice on how to initiate an administrative procedure within his field of competence. The official shall take care that the information communicated is clear and understandable." According to Article 22(3) of the Code, "[i]f, because of its confidentiality, an official may not disclose the information requested, he or she shall ... indicate to the person concerned the reasons why he cannot communicate the information."

41. In assessing the complainant's allegation, the Ombudsman needed to examine whether the Court fully addressed the questions raised in the complainant's letter of 21 September 2011. In the course of the inquiry, the Court provided certain additional information in reply to the complainant's first question. As regards his questions (2)-(4), however, it gave reasons for its view that it was not obliged to provide the requested information. The Ombudsman therefore considered it appropriate in his analysis to distinguish between the complainant's first question and his questions (2)-(4). He added that his analysis only extends to the Court's handling of the complainant's request for information, but does not in any way contain any assessment of the content of the rules to which the complainant's request relates. He deemed it furthermore appropriate to recall that the present complaint concerns the Court's handling of a request for information and thus pertains to its administrative activities which alone may be considered by the Ombudsman (Article 228 TFEU).

As regards the complainant's first question

42. The Ombudsman recalled that, through his first question, the complainant asked when and how parties to proceedings are informed of the exact composition of the chamber hearing their case[3].

43. In its reply of 28 September 2011, the Court explained that each court has its own rules on the composition of chambers and, as regards the Court itself, it pointed out that parties are informed of the composition of the chamber hearing their case after that case has been dealt with in the course of its general meeting. In its opinion, the Court took the view that the complainant should have understood the reference to the other courts as an implicit invitation to contact the General Court and the CST in relation to his first question. The complainant rejected this view, given that the Court should have explicitly informed him of this and, in any event, it should have forwarded his letter to the General Court and the CST.

44. While the Ombudsman had doubts as to whether the complainant could and should indeed have understood the Court's letter of 28 September 2011 as including an implicit invitation to turn to the General Court and the CST for relevant information, he considered that there is no need for him to take a definitive view on this issue. This was so because, in its opinion, the Court provided further information, also obtained from the General Court and the CST, in reply to the complainant's first question, by explaining when and how parties to proceedings before the three courts here at issue are informed of the composition of the chamber hearing their case. For the same reason, there was no need for the Ombudsman to consider whether the Court would have been required to forward the complainant's question to the General Court and the CST.

45. The Ombudsman noted that, in his observations, the complainant did not revert to the issue of the composition of chambers other than the Appeal Chamber, that is to say, the chamber of the General Court hearing cases brought on appeal against decisions of the CST. As regards the Appeal Chamber, however, he expressed dissatisfaction with the Court's reply, arguing that the references provided by the Court did not allow him to identify the actual composition of that chamber. The ensuing question as to when a request concerning the composition of that chamber would have to be made therefore remained unanswered. Moreover, the complainant considered it astonishing that the Court did not refer to any rules governing its procedure in this context.

46. In this regard, the Ombudsman noted that the complainant's first question did not concern the actual composition of the Appeal Chamber but the issue of when and how the parties to proceedings are informed of the actual composition of chambers hearing cases. As regards the Appeal Chamber specifically, it emerged from the Court's reply that, in a general manner, potential applicants are informed of the composition of that chamber by means of a notice published in the Official Journal. As regards the names of the judges sitting in that chamber, the Court stated that, upon request, the Registrar informs the parties to proceedings thereof. In his first question, the complainant asked when and how parties to proceedings are informed of the exact composition of the chamber hearing their case, but not about the time when parties would have to submit relevant requests. It emerged from the Court's opinion that, in view of the publication in the Official Journal, parties to disputes would in any event be able to learn, in a general manner, about the composition of the Appeal Chamber before bringing a case on appeal. The Ombudsman also noted that, in its opinion, as well as in its letter of 28 September 2011, the Court made reference to the Rules of Procedure of the Court and of the General Court. The complainant's view that the Court provided insufficient information in reply to his first question was therefore not convincing.

As regards the complainant's questions (2)-(4)

47. The Ombudsman noted at the outset that, in its reply to the complainant triggered by the Ombudsman's intervention, the Court stated that it cannot provide legal advice in individual cases, but can only give objective and neutral information. In line with these considerations, the Court referred the complainant to Article 18 of the Statute, which deals with instances of a possible bias of judges, and explained that it is binding on all three courts. In its opinion, the Court took the view that it cannot provide citizens with legal opinions, regardless of whether the questions raised are of a general nature or instead concern a particular case. The Court also took the view that answering the questions raised required identifying, applying and interpreting legal principles and provisions. In this regard, the Ombudsman recalled that, in his letter requesting an opinion from the Court, he pointed out that the reasons invoked by the Court in its previous letters do not seem to explain why the Court considers itself not to be in a position fully to reply to the complainant's questions. He went on to ask the Court, in case it still wished to maintain its position, to specify those reasons. In his analysis, the Ombudsman therefore assessed the position taken by the Court in its opinion.

48. For the purposes of the present analysis, the Ombudsman considered that, as the Court itself appeared to acknowledge in its opinion and in view of the fact that the decisions in the complainant's cases have become final and that there exists no remedies against them, the fact the complainant was a former applicant to the Court was irrelevant.

49. The Ombudsman noted that the requirement in the European Code of Good Administrative Behaviour to provide members of the public "with the information that they request" could not be interpreted as meaning that institutions are required to provide citizens with a tailored answer to specific legal issues raised by them, entailing an analysis and consideration of complex legal issues. In this regard, the Court's reference to the need for applicants in proceedings before the three courts to be represented by lawyers was pertinent. The Ombudsman thus considered the Court's position that it is not required to provide citizens with legal opinions on a matter raised by them to be clearly correct. It followed that the Court cannot be considered duty-bound to apply and interpret legal principles and provisions in order to provide citizens with an answer upon request. However, the right of citizens to be provided with the information they request would be significantly curtailed if one were to accept that even the mere identification of basic principles or provisions governing the internal organisation of the work of an institution is not covered by the material scope of that right. The Ombudsman considered this all the more to be true where a citizen asks to be informed about elementary procedural rules governing the functioning of an institution which, however, do not, as such, appear to be in the public domain. It followed that an institution cannot refuse to provide information that has been requested by merely invoking a need to identify a legal principle or provision forming part of its internal organisation. The Ombudsman therefore considered that the Court is, in principle, under an obligation to provide at least basic information in reply to questions by citizens concerning its procedural rules.

50. The Ombudsman recalled that the complainant's second question was worded as follows: "How should parties to a case proceed if they suspect that one or more judges are biased? In other words, with whom or before which instance should challenges for bias be lodged?[4]". The complainant's third question read as follows: "Which remedies are available in case such challenge is rejected?[5]". Finally, his fourth question was worded as follows: "Which sources contain the procedural rules which address the issues raised in points 1-3?[6]".

51. As regards the second question raised by the complainant, the Ombudsman expressed some understanding for the Court's position, since the first part of that question could indeed be understood to amount to a request for legal advice. It referred in an abstract way to the situation of certain parties and asked how they could proceed in such a situation. However, the Ombudsman considered it noteworthy that, in the second part, the complainant specified his second question, raising a general procedural issue which did not appear to require the Court to interpret and apply legal provisions and principles in order to address it. The Ombudsman considered the same consideration to apply to the complainant's third and, most strikingly, to his fourth questions to the extent that the latter question related to the complainant's second and third questions. While the Court therefore could have had certain doubts as to its capacity to answer the second question, there was no room for doubt as regards its capacity to reply to the complainant's third and fourth questions.

52. At least, the Court could provide the complainant with, or refer him to, the procedural rules which address the issues raised in his questions (2) and (3) or, in the absence of such rules, it could have informed him accordingly. In the given context, the Ombudsman also found it difficult to reconcile the Court's position with the fact that, in its letter of 28 September 2011, it explained that Article 18 of the Statute deals with instances of possible bias of judges. It therefore appeared that the Court itself acknowledged that there is no obstacle to providing the complainant with references to applicable procedural rules. At the same time, it clearly emerged from the Court's opinion that the Court itself did not consider the reference to Article 18 of the Statute to be complete. Moreover, if the Court indeed assumed that it was required to apply and interpret legal principles and provisions in order to provide an answer, one would have expected the Court to give further details as to why the question asked by the complainant required such action.

53. While the Ombudsman considered that the Court is clearly correct in pointing out that the internal rules of the Union courts provide that applicants in proceedings before them must be represented by lawyers, the Ombudsman did not see how this could exonerate it from its duty to provide general information to citizens. If the Ombudsman were to accept such a position, the logical consequence would be that citizens would have to consult a lawyer concerning mere requests for information before actually lodging a case before the Court. However, this would not appear to be appropriate.

54. In light of the above, the Ombudsman made the preliminary finding that the Court could and should provide the complainant with further information in reply to questions (2)-(4) contained in his information request. The Ombudsman therefore made the following proposal for a friendly solution below, in accordance with Article 3(5) of the Statute of the European Ombudsman:

"Taking into account the Ombudsman's findings, the Court could consider providing further details in reply to the complainant's questions (2)-(4)."

The arguments presented to the Ombudsman after his friendly solution proposal

55. In its reply to the Ombudsman's friendly solution proposal, the Court provided the following further information.

56. The Court started by saying that there is no provision in EU law governing the procedure for bringing remedies if a party suspects that one or more judges hearing a case are biased. The only provision which, albeit implicitly, recognises the existence of such a remedy is Article 18 of the Statute to which the Court referred in its reply to the complainant dated 28 September 2011. The Court added that, in practice, the Union courts decide on challenges for bias on the basis of Article 18 of the Statute and the principle of judicial impartiality which finds expression in that Article. The Court moreover explained that challenges for bias are usually submitted to the registry of the Court of which the judge concerned is a member.

57. The Court went on to state that, in the absence of specific rules concerning remedies against rejections of challenges for bias, the (general) rules on remedies apply. These rules are laid down in Articles 56 to 61 of the Statute; Articles 167 to 170 of the Rules of Procedure of the Court; Articles 9 to 13 of Annex I to the Statute; and Articles 136a to 139 of the Rules of Procedure of the General Court. The Court added that it is for the parties concerned and the lawyer representing them to examine how to defend their interests in the framework of these provisions. In the given context, the Court also referred to Article 56(1) of the Statute and to Article 9(1) of Annex I to the Statute and the possibility of bringing, within two months from the notification of the decision appealed against, appeals against the substance of the Court's decisions under the conditions foreseen in these provisions.

58. In his observations, the complainant stated that he considered that the Court by now had not only comprehensively replied to his first question but also to his second and third questions. The same was true of his fourth question to the extent that that question refers to his second and third questions. Thus, the Court had now explained where procedural rules in relation to matters covered by his second and third questions are to be found. The complainant thanked the Court for the information provided.

59. As regards his first question, relevant information was still missing, however, given that the Court did not explain which provision foresees that applicants are informed of the composition of the chamber hearing their case upon their request only. He therefore asked the Ombudsman to request the Court to provide this additional piece of information, given that this aspect was explicitly raised in his initial letter to the Court.

The Ombudsman's assessment after his friendly solution proposal

Preliminary remarks

60. In its reply to the Ombudsman's friendly solution proposal, the Court, while stating that it wishes to accommodate the Ombudsman's proposal, also referred to Article 228 TFEU. That article empowers the Ombudsman to receive complaints concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, "with the exception of the Court of Justice of the European Union acting in its judicial role".

61. The Court argued that the exception provided for in Article 228 TFEU should not be interpreted as extending only to the Court's activities in handling cases pending before it but instead to the exercise of the Court's judicial role in its entirety ("l'exercice des fonctions juridictionelles de la Cour pris dans son ensemble"). The Court based its interpretation on the Statute of the Ombudsman and noted, in this regard, that Article 1(3) of that Statute prevents the Ombudsman from questioning the soundness of a court's ruling. On the other hand, the Court recalled that Article 2(1) of the Statute of the Ombudsman provides that the Ombudsman is empowered to deal with complaints in respect of instances of maladministration in the activities of the aforesaid institutions, "with the exception of the Court of Justice and the Court of First Instance acting in their judicial role." Against this background, the Court argued that if the expression of "acting in its judicial role" were to be considered to cover only the Court's role of handing down decisions, Article 1(3) of the Statute of the Ombudsman would be superfluous, given that both Article 1(3) and Article 2(1) would in that hypothesis have the same content.

62. The Court went on to state that the Ombudsman's inquiry concerns a request for information regarding the exercise of its judicial role. According to the Court, its replies to such requests concern its judicial role and not administrative matters. The Court concluded that the Ombudsman, pursuant to Article 228 TFEU, would therefore not be entitled to assess the Court's reply to the complainant's request for information.

63. The Ombudsman is mindful of the limits set to his mandate both by Article 228 TFEU and by his Statute. He appreciates the Court's reminder as regards the limits of his purview, but is not convinced that an interpretation of his Statute should lead to the conclusion that he would not be entitled to assess, in the present case, whether the Court’s replies to the complainant contained answers to the questions he raised. In the given context, the Ombudsman recalls that Article 43 of the Charter of Fundamental Rights of the EU confers on any Union citizen and any natural or legal person residing or having its registered office in a Member State the right to refer to the Ombudsman cases of maladministration in the activities of the EU institutions, with the exception of the Court acting in its judicial role. As an exception to the fundamental right to complain to the Ombudsman, the reference to the Court's judicial role must not be construed in a manner which would go beyond the purpose pursued by it. It seems clear that that purpose, as pointed out by the Court, is to exclude the Court's judicial activities from the Ombudsman's purview. There can be no doubt that the purpose of the exception in Article 43 of the Charter of Fundamental Rights of the EU which equally finds expression in Article 228 TFEU and in Article 2(1) of the Statute of the Ombudsman would be defeated if the question of whether or not the Court answered a general request for information concerning basic procedural rules governing its functioning were to be considered to fall within the exception relating to the Court's judicial role.

64. The Ombudsman welcomes and applauds the fact that, as well as expressing doubts concerning the Ombudsman’s mandate, the Court adopted a constructive and helpful approach in addressing the substance of his friendly solution proposal (see paragraph 65 below).

Assessment

65. The Ombudsman recalls that his friendly solution proposal concerned the complainant's questions (2)-(4). In view of the answers provided by the Court in relation to these questions and the complainant's satisfaction with the replies received, the Ombudsman concludes that the Court has accepted his friendly solution proposal.

66. The Ombudsman notes that, in his observations on the Court's reply to his friendly solution proposal, the complainant considered the Court's reply to his first question to be comprehensive but also argued that certain information in that reply was still missing. The Ombudsman recalls that, for the reasons set out in paragraph 46 above, in his preliminary assessment leading to a friendly solution proposal, he considered the Court's reply to the complainant's first question to be sufficient. As a consequence, this aspect was not included in the Ombudsman's friendly solution proposal to which the complainant agreed before it was sent to the Court. The Ombudsman sees no reason to change his position in relation to this matter.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusions:

The Court has accepted his friendly solution proposal.

The complainant and the Court will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 17 July 2013

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[1] By way of example, the Court referred to Article 19(2) of the instructions to the Registrar of the General Court and Article 18(2) of the instructions to the Registrar of the CST.

[2] OJ 2011 C 232, p. 2.

[3] "Zu welchem Zeitpunkt und in welcher Form erhalten die Prozessbeteiligten bei Verfahren einschließlich Rechtsmittelverfahren vor den europäischen Gerichten (Gerichtshof, Gericht bzw. Gericht für den öffentlichen Dienst) Informationen über die genaue personelle Zusammensetzung der zuständigen Kammer?"

[4] "Wie können Prozessbeteiligte bei Verdacht auf Befangenheit eines oder mehrerer Richter vorgehen? D.h. bei wem oder welcher Instanz ist ein Antrag auf Befangenheit zu stellen?"

[5] "Welche Rechtsmittel stehen zur Verfügung, falls ein solcher Antrag abgelehnt wird?"

[6] "Wo finden sich Verfahrensvorschriften, die die Punkte 1.-3. näher regeln?"