3. Action for failure to act

Question 1

Legal basis

Answer 1

Article 265 TFEU

Question 2

Objective of the procedure

Answer 2

CJEU find that there is an illegal failure to act on the part of an EU institution

Question 3

Difference between infringement procedure and action for failure to act?

Answer 3

Both are declaratory judgements, but in the action for failure to act, there is no change as in the Lisbon Treaty for the infringement procedure: there is no possibility for sanctions in the action for failure to act in the first procedure like in Article 260(3)

Question 4

What does “illegal” failure to act mean

Answer 4

Art. 265 TFEU:

• a failure of an institution
• to take in a reasonable time
• an action clearly specified by the claimant
• which it was bound to take under EU law
• -> In infringement of the Treaties - the failure to act must be “illegal”. This Article supposes that the institution in the case was under duty to act.

The claimant must demonstrate that according to EU law, the institution in question was bound to take the decision.

Question 5

Who is involved?

Answer 5

Article 265 TFEU:

• European Parliament
• The Council
• The Commission
• ECB (Art. 232 (4) TFEU)

!! if co-decision is used, the action for failure to act targets both the Council and the EP

Article 265 para 2 TFEU:
- bodies, offices and agencies

Question 6

Can you bring an action for failure to act against the Court for not issuing a judgment on time?

Answer 6

NO

Question 7

what does the wrongful failure to act means

Answer 7

Art. 265 TFEU:

• a failure of an institution
• to take in a reasonable time
• an action clearly specified by the claimant
• which it was bound to take under EU law

Question 8

Can you bring an action for failure to act against the Commission because the Commission did not bring an infringement action?

Answer 8

NO - Article 265 TFEU establishes that the institution has to fail to act “in infringement of the Treaties”, meaning it has had a duty as established in the EU law.
Commission has complete margin of appreciation in bringing infringement actions. Therefore, refusing to act can never give rise to failure to act.

Question 9

Can you bring an action for failure to act against the Commission because it did not answer to your complaint?

Answer 9

YES, for ex. in competition law or state aid.
FOR NATURAL OR LEGAL PERSONS, it must be a binding act.
FOR THE INSTITUTIONS ACTING AGAINST OTHER INSTITUTIONS, the act they are expecting does not have to be binding.

Question 10

Can the European Parliament bring an action against the Council for not introducing the budget?

Answer 10

YES - although introducing the budget is a preparatory act, it has legal effect because without the proposal, it is impossible to decide on the budget.

Question 11

Can a natural or legal person bring an action against the Council for not introducing the budget?

Answer 11

NO - the action brought by natural or legal person has to be against a failure to act of a legal binding force

Question 12

Who can act?

Answer 12

A. Member States
B. Institutions
C. any natural or legal person

Question 13

Can a body, office or an agency bring an action for failure to act against MS?

Answer 13

NO - they can only be defendants, not applicants

Question 14

Can a body, office or an agency bring an action for failure to act against other institutions?

Answer 14

NO - they can only be defendants, not applicants

Question 15

Conditions for admissibility of action for failure to act by a natural or legal person

Answer 15

• Any act other than recommendation or an opinion (meaning acts having binding legal effect)

Art 265 (3) TFEU implies same conditions as in the annulment:
- failure to adopt an act which is of DIRECT and INDIVIDUAL CONCERN 
or
- failure to adopt a regulatory act which is of DIRECT CONCERN to them and do not entail implementing measures.

Question 16

Can a MS bring an action for failure to act for a recommendation made by an EU institution?

Answer 16

YES - Art. 265 para 1 does not mention anything about the necessary binding legal nature of the challenged acts. Therefore, MS can bring an action for recommendations and opinions, even if they don’t have binding legal force.

Question 17

What is the aim of the procedure?

Answer 17

The aim is that the institution, body, office or agency who has failed to act ‘defines its position’ (Art. 265 para 2). The objective is not to punish or to condemn the institution.

Question 18

Stages of the procedure

Answer 18

1. Administrative stage:
   Two substages:
   a) The letter of formal notice
   b) The reasoned opinion
2. Judicial stage:
   if the institution, body, office or agency hasn’t defined its position at the end of the 2 months period, the action for failure to act must be brought within 2 months (+ 10 days for distance).
   If it defines its position during that time, the Court declares that the action has become ‘to no purpose’ or ‘loses its object’.

Question 19

Can you bring an action against an institution without calling them first to act?

Answer 19

NO - You cannot bring the action before court before having first called upon to act Art. 265 para 2
This must be an act/letter/mail indicating a clear will, defining which measure/act you except the defendant to adopt. Identifying yourself, indicating a clear will.

Question 20

What does “defining position” mean?

Answer 20

• The Court will give attention to the content of the reaction by the institution or body, not the form. For ex., EC answers that they are going to read the letter is not a position
• The position must decide something. The position may be negative - rejecting the applicants desire. If the applicant does not like this, it can look for an action for annulment

If the defendant defines its position during that time, the Court declares that the action has become ‘to no purpose’ or ‘loses its object’.

Question 21

What is the difference between the objectives for the action for infringement and action for failure to act?

Answer 21

The objectives between two procedures are different:
à Action for infringement: to obtain a legal behavior/act of the Member State
à Action for failure to act: to obtain a position of a European institution, body or agency

Question 22

Effect of the judgment

Answer 22

• Judgment declaring a failure to act
The Court of Justice or the General Court will not substitute itself to the institution at fault nor issue injunctions.

BUT you have art. 266 TFEU, saying that the institution, body or agency whose act has been declared void or who’s failure to act has been declared contrary to the Treaty, shall be required to take the necessary measures to comply with the judgment of the Court of Justice.
SANCTION ? Possibly a second action for failure to act on the basis of a breach of art. 266 TFEU
CAVEAT: see art. 266(2) TFEU

Question 23

Which is the competent court?

Answer 23

Here you have exactly the same rules as for the action for annulment. It depends on the applicant.
- If it is an institution it goes to the Court of Justice,
- if it is a natural or legal person it goes to the General Court and
- if it is a member state it depends on the defendant.
o If the defendant is the EC, the member states
have to take the procedure before the
General Court, with 1 exception.
o If the defendant is the Council, then the
member state has to bring the procedure for
failure to act to the Court of Justice except in 3
cases: dumping, state aid and executive power
reserved to the Council.