Private Parties in European Community Law: Challenging Community Measures

By Albertina Albors-Llorens | Go to book overview

8
The Action for a Failure to Act

8.1 GENERAL FEATURES

The action for a failure to act is a remedy closely related to the action of annulment in so far as, whilst annulment proceedings aim at the removal of illegal acts, the action for a failure to act seeks to challenge the unlawful inaction of Community Institutions. Therefore, it represents the logical complement1 in judicial review in relation to the action of annulment. If only the action of annulment were available to ensure that the EC institutions acted within the limits of the law, there would be situations where the Community executive could abstain with impunity from adopting legislation or from taking decisions in situations where it ought to act. The closeness between the two recourses is evident and, as the Court has repeated consistently 'both prescribe one and the same method of recourse'.2

This remedy appears regulated in all three Community Treaties. Thus, Article 175 EC Treaty reads:

Should the European Parliament, the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community, may bring an action before the Court of Justice to have the infringement established.

The action shall be admissible only if the institution concerned has first been called upon to act. If, within two months of being called upon, the institution concerned has not defined its position, the action may be brought within a further period of two months.

Any natural or legal person may, under the conditions laid down in the proceedings paragraphs, complain to the Court of Justice that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion.

The Court of Justice shall have jurisdiction, under the same conditions, in actions or proceedings brought by the European Central Bank in the areas failing within the latter's field of competence and in actions or proceedings brought against the latter.3

____________________
1
A. G. Toth ( Legal Protection of Individuals in the European Communities ( Amsterdam, 1978), ii, 97 and "'The Law as it Stands on the Appeal for a Failure to Act'" [ 1975/2] LIEI 65 refers very appropriately to this remedy as 'the other side of the coin' in judicial review in respect of the action for annulment.
2
Case 15/70 Chevalley v. Commission [1970] ECR 975, at point 6. T. C. Hartley ( The Foundations of European Community Law ( 3rd edn., Oxford, 1994), 395) refers to the closeness of these two methods of recourse as the 'unity principle'.
3
The words in italics represent the Maastricht amendments. See Art. 148 Euratom Treaty, which has retained its original version--identical with the original version of Art. 175 EC Treaty--and has not been affected by the Maastricht Treaty.

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