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Proceedings for failure to act
Proceedings for failure to act are one of the actions which may be brought before the Court of Justice of the European Union. These types of proceedings are carried out against the inaction of a Union institution, body, office or agency. If this inaction is illegal under European law, the Court shall confirm the failure to act and the institution, body, office or agency concerned must take appropriate measures.
Proceedings for failure to act are legal proceedings brought before the Court of Justice of the European Union (CJEU). They enable the Court to control the inaction of a European Union (EU) institution, body, office or agency.
Nature of the proceedings
Proceedings for failure to act may be brought against the European Parliament, the European Council, the Council, the Commission or the European Central Bank. They may also be brought against EU bodies, offices or agencies.
Moreover, failure to act is characterised by the failure to act by the body concerned where European law imposed an obligation to act. The failure to act is therefore illegal.
For example, proceedings for failure to act may be brought against an institution which has not adopted an act or taken a measure provided for by European law.
Article 265 of the Treaty on the Functioning of the EU provides for two categories of plaintiff.
The first category groups the Member States and the EU institutions together. These plaintiffs are termed ‘preferential’ in that they do not have to demonstrate any interest in taking action in order to be able to bring proceedings for failure to act.
The second category comprises individuals. Unlike preferential plaintiffs, individuals must have an interest in taking action in order to be able to bring proceedings before the Court of Justice. Article 265 of the TFEU specifies that individuals may bring proceedings for failure to act against an institution which has failed to address an act to them. In practice, the Court of Justice also accepts proceedings for failure to act in relation to an act which is not formally addressed to individuals but concerns them directly and individually.
Before being able to bring proceedings for failure to act, the plaintiff must first call upon the Union institution, body, office or agency to act. If after two months, the entity concerned has not defined its position, the plaintiff has a further period of two months to introduce proceedings for failure to act before the Court of Justice.
If the Court of Justice finds in favour of the plaintiff, it limits itself to this finding. In other words, the Court of Justice cannot substitute itself for the institution concerned to remedy the failure to act. It is the responsibility of the institution to act within a reasonable period of time.
Division of jurisdiction between the Court of Justice and the General Court
The Court of Justice has jurisdiction in:
- proceedings brought by Member States against the European Parliament or the Council;
- proceedings brought by an institution against another institution.
The General Court has jurisdiction to hear and determine at first instance all other types of proceedings, and in particular, proceedings brought by individuals.
This fact sheet is not legally binding on the European Commission, it does not claim to be exhaustive and does not represent an official interpretation of the text of the Treaty.
- Additional information is available on the website of the Court of Justice of the European Union