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Constitutional and institutional law of the European Union.

Section C: Remedies and procedures in European Union law.

Chapter 5: Actions for failure to act.

Notes by Kaihsu Tai, 2010-12-17.

Legal basis
Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act.

The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months.

Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.

Distinguish from actions for annulment, Article 263 TFEU. The content of the judgment, if the action is successful, is a declaration by the Court that an institution has acted unlawfully by failing to act.

Negative decisions
A party requesting the repeal of an act which is rejected cannot bring an action for failure to repeal under Article 265 TFEU; if this were allowed, it would provide a parallel recourse to Article 263 (actions for annulment) not subject to the same conditions: Joined cases 10 and 18/68 Eridania v Commission.

Locus standi
As in Article 263 TFEU, privileged applicants always have locus standi under Article 265 TFEU. The condition for locus standi for private applicants are the same in Article 265 TFEU as in Article 263 TFEU: Case C-107/91 ENU v Commission.