Order — ECLI:EU:T:1997:98
Date: 1997-07-03
Language of the case: French
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Foodstuffs;Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions
Concepts: Basis of liability;Applications by natural or legal persons
Procedure: Action for damages - inadmissible;Application to intervene - decision unnecessary;Action for failure to act - inadmissible
Origin: France

Summary of the Order 
1. Actions for failure to act — Natural or legal persons — Actionable omissions — Failure to 
initiate infringement proceedings — Inadmissibility 
(EC Treaty, Arts 169, 173, fourth para., and 175) 
2. Non-contractual liability — Conditions — Unlawfulness — Fact that the Commission did not 
initiate infringement proceedings — Not unlawful — Claim for damages — Inadmissible 
(EC Treaty, Arts 169 and 215, second para.) 
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SUMMARY — CASE T-201/96 
1. Where an action is brought by a natural 
or legal person for a declaration of failure 
to act in that, by not initiating infringe­
ment proceedings against a Member State, 
the Commission has failed, in breach of 
the Treaty, to take a decision, that action 
is inadmissible, irrespective of the nature 
of the infringement of Community law 
alleged against the Member State con­
cerned. 
It is clear from the scheme of Article 169 
of the Treaty that the Commission is not 
obliged to commence proceedings under 
that provision but has a discretion in that 
regard which excludes the right for indi­
viduals to require it to adopt a specific 
position. Furthermore, a natural or legal 
person who requests the Commission to 
initiate a procedure under Article 169 is 
in fact seeking the adoption of acts which 
would not be of direct and individual 
concern to him within the meaning of the 
fourth paragraph of Article 173 of the 
Treaty and which he would thus in any 
event be unable to challenge in annulment 
proceedings. 
2. Since the Commission is under no obliga­
tion to commence infringement proceed­
ings under Article 169 of the Treaty, its 
decision not to do so is not unlawful and 
thus cannot give rise to non-contractual 
liability on the part of the Community, 
the only conduct which might possibly 
be adduced as giving rise to damage being 
the conduct of the Member State con­
cerned. Consequently, a claim for dam­
ages the real aim of which is to complain 
of the Commission's decision not to 
commence infringement proceedings 
against a Member State is inadmissible. 
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