Court of Justice of the European Communities (including Court of First Instance Decisions)

1 Actions for failure to act - Natural or legal persons - Actionable omissions - Failure to respond clearly to grounds put forward in a complaint concerning the applicability of a directive - Inadmissible
(EC Treaty, Art. 175, third para.)
2 Actions for failure to act - Natural or legal persons - Actionable omissions - Failure to initiate an infringement procedure - Inadmissible
(EC Treaty, Arts 169, 173, fourth para., and 175, third para.)

3 An action for failure to act brought by a natural or legal person, seeking a declaration by the Court that the Commission failed to respond clearly to the grounds put forward by the applicant in its complaint concerning the applicability of a directive, is inadmissible. A natural or legal person may rely on the third paragraph of Article 175 of the Treaty only in order to seek a declaration that, in infringement of the Treaty, there has been a failure to adopt an act of which that person is a potential addressee. The applicant cannot be regarded as the potential addressee of an act of the Commission concerning the justification of its complaint, since there is no provision in the Treaty or any secondary legislation obliging the Commission to address to an individual an act embodying a finding as to the compatibility of national legislation with Community law. In any event, once the Commission has in fact responded or defined its position in response to a request made by an individual, there is no failure to act within the meaning of Article 175 of the Treaty. The fact that the measure adopted or the position defined by the institution concerned does not satisfy the applicant is of no relevance in that regard since Article 175 refers to failure to act in the sense of failing to take a decision or to define a position, and not that of adopting a measure different from that desired or considered necessary by the applicant.
4 An action for failure to act brought by a natural or legal person, seeking a declaration that, by not addressing a reasoned opinion to a Member State, the Commission, in infringement of the Treaty, failed to act, is inadmissible.
The Commission is not bound to initiate an infringement procedure against a Member State; on the contrary, it has a discretionary power of assessment, which rules out any right for individuals to require it to adopt a particular position.
Moreover, in the context of the infringement procedure laid down by Article 169 of the Treaty, the only measures which the Commission may have to take are addressed to the Member States, so that, not being a potential addressee of such a measure, a natural or legal person may not rely on the third paragraph of Article 175.