Judgment — ECLI:EU:T:1998:35
Date: 1998-02-17
Language of the case: French
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Veterinary legislation
Concepts: General;Basis of liability;Definition of the institution's position;Medicinal products for veterinary use
Procedure: Action for damages - unfounded;Action for failure to act - decision unnecessary
Origin: Belgium

Summary of the J u d g m e n t 
1. Actions for failure to act — Failure remedied after initiation of the proceedings — Subject-
matter of the action ceasing to exist — No need to adjudicate 
(EC Treaty, Arts 175 and 176) 
2. Actions for failure to act — Notice given to the institution — Definition of position within the 
meaning of the second paragraph of Article 175 of the Treaty — Definition 
(EC Treaty, Arts 173 and 175, second para.) 
3. Non-contractual liability — Conditions — Illegality — Damage — Causal link — Unlawful 
conduct consisting in failure to act in region to a législativé act — Sufficiently clear breach of 
a higher-ranking rule of law for the protection of individuals 
(EC Treaty, Art. 215, second para.) 
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SUMMARY — CASE T-105/96 
4. Agriculture — Uniform laws — Maximum residue limits of veterinary medicinal products in 
foodstuffs of animal origin — Procedure for their establishment — Regulation No 2377/90 — 
Commission's obligations — Scope 
(Council Regulation No 2377/90, Art. 6(2) and (3), and Art. 8(3)(b)) 
1. The remedy provided for in Article 175 
of the Treaty is founded on the premiss 
that unlawful inaction on the part of the 
European Parliament, the Council or the 
Commission enables the other institu­
tions and the Member States and, in cer­
tain cases, private persons, to bring the 
matter before the Court of Justice or the 
Court of First Instance in order to obtain 
a declaration that the failure to act is con­
trary to the Treaty, in so far as it has not 
been repaired by the institution con­
cerned. The effect of that declaration, 
under Article 176 of the Treaty, is that the 
defendant institution is required to take 
the necessary measures to comply with 
the judgment of the Court of Justice or of 
the Court of First Instance, without 
prejudice to any actions to establish non­
contractual liability to which the afore­
said declaration may give rise. 
Where the act whose absence constitutes 
the subject-matter of the proceedings is 
adopted after expiry of the period of two 
months following the request to act, but 
before judgment, a declaration by the 
Court of Justice or by the Court of First 
Instance to the effect that the initial fail­
ure to act was unlawful can no longer 
bring about the consequences prescribed 
by Article 176 of the Treaty. It follows 
that in such a case, as in cases where the 
defendant institution responds within a 
period of two months after being called 
upon to act, the subject-matter of the 
action ceases to exist, so that there is no 
need to adjudicate. 
2. An act which is not challengeable by an 
action for annulment may constitute a 
definition of position capable of terminat­
ing the failure to act if it is the prerequi­
site for the next step in a procedure 
which has, in principle, to culminate in a 
legal act which itself will be challengeable 
by an action for annulment. 
3. The Community's non-contractual liabil­
ity is not incurred unless, first, a set of 
conditions relating to the illegality of the 
Community institution's conduct which 
is the subject of complaint, the occur­
rence of actual damage and the existence 
of a causal link between the unlawful 
conduct and the harm alleged are all ful­
filled, and, second, in the case of failure to 
act relating to a legislative act, unless it is 
proved that there has been a sufficiently 
clear breach of a higher-ranking rule of 
law for the protection of individuals. 
4. Council Regulation N o 2377/90 laying 
down a Community procedure for the 
establishment of maximum residue limits 
of veterinary medicinal products in food­
stuffs of animal origin makes provision 
for various annexes in which a pharmaco­
logically active substance intended for use 
in veterinary medicines to be adminis­
tered to food-producing animals may be 
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PHAROS v COMMISSION 
included. To that end, pursuant to Article 
6(2) and (3) and Article 8(3)(b) of that 
Regulation, the Commission is to submit 
applications to the Committee for Veteri­
nary Medicinal Products, prepare a draft 
of the measures to be taken and, where 
the measures envisaged are not in accord­
ance with the opinion of the Committee, 
without delay propose to the Council the 
measures to be adopted. 
On that point, the Commission is not in 
breach of either the principle of legal 
certainty or that of the protection of 
legitimate expectations, in that, when 
confronted with a matter which is highly 
complex and sensitive both scientifically 
and politically, it reconsiders it for a cer­
tain time and, rather than submitting a 
proposal to the Council immediately, first 
asks the Committee for Veterinary 
Medicinal Products for a further opinion. 
O n the one hand, the Commission must 
be accorded the right to seek such an 
opinion even though Regulation N o 
2377/90 is silent on the point, and, on the 
other, given that it is not open to anyone, 
in the absence of precise assurances given 
by the administration, to plead breach of 
the principle of protection of legitimate 
expectations, it cannot be inferred from 
the relevant rules that the period within 
which the Commission had to act was 
perfectly foreseeable and that precise 
assurances were given to those concerned 
with regard to that period. 
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