Keywords

Summary



Keywords

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1. Actions against Community institutions for failure to act ° Omission remedied after the bringing of the action ° Subject-matter of the action ceasing to exist ° No need to give a decision

(EEC Treaty, Arts 175 and 176)

2. Actions for annulment of measures ° Natural or legal persons ° Measures of direct and individual concern to them ° Refusal by the Commission to re-establish the import levy on certain agricultural products benefiting from the system of generalized preferences ° Refusal to adopt a measure of general application ° Inadmissible

(EEC Treaty, Art. 173, second para.)

Summary

1. The remedy provided for in Article 175 of the Treaty is founded on the premise that the wrongful failure to act on the part of the institution in question enables an action to be brought before the Court in order to obtain a declaration that the failure to act is contrary to the Treaty, in so far as it has not been repaired by the institution concerned. The effect of that declaration, under Article 176, is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court, without prejudice to any actions to establish non-contractual liability to which the aforesaid declaration may give rise.

In a case where the act whose absence constitutes the subject-matter of the proceedings is adopted after the action is brought but before judgment, a declaration by the Court to the effect that the initial failure to act is 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 has responded within the period of two months after being called upon to act, the subject-matter of the action has ceased to exist, so that there is no longer any need for the Court to give a decision.

The fact that the position adopted by the institution does not satisfy the applicant is of no relevance in this respect, since Article 175 refers to failure to act in the sense of failure to take a decision or to define a position, not the adoption of a measure other than that desired or considered necessary by the persons concerned.

2. In the examination of the admissibility of an action for the annulment of a rejection decision taken by an institution, that decision must be appraised in the light of the nature of the request to which it constitutes a reply.

An action for annulment brought by an individual against a rejection decision is inadmissible if it is directed against the refusal to adopt a regulation of general application.

A regulation re-establishing completely the levies on certain imports of ducks and geese which benefit from the system of generalized preferences would concern the importers, breeders and all slaughterhouses without distinction. A trader in that sector who cannot claim that he would be individually concerned by such a regulation is thus not entitled to challenge the refusal to adopt it by means of an action for annulment.

That reasoning is not affected by the fact that in the context of anti-dumping measures complainants are in certain cases entitled to bring an action for annulment against a refusal by the Commission to institute an anti-dumping procedure, since that right is acknowledged only in view of the special nature of the legal position granted to them in the relevant basic regulations. No corresponding protection for Community producers was introduced in the context of the common organization of the market in poultrymeat.