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 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.)

3 Where an action is brought by a natural or legal person for a declaration of failure to act in that, by not initiating infringement 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 concerned.
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 individuals 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.
4 Since the Commission is under no obligation to commence infringement proceedings 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 concerned. Consequently, a claim for damages the real aim of which is to complain of the Commission's decision not to commence infringement proceedings against a Member State is inadmissible.