Monday, February 14, 2005

Complaints for failure to Act

Art. 175 of the EEC Treaty deals with complaints against Community institutions for failure to act. Failure to fulfill a duty by such institution can be harmful. Community institutions and Member States are entitled to bring an action in the Court of Justice against the Commission or the Council for failure to act in violation of EEC Treaty obligations.

Private individuals have standing to sue under article 175 provided the duty to act was owed to them (see Case 246/81, Lord Bethell v. Commission.) In later articles, I'll elaborate more on cases brought before the Court of Justice.

Art. 175 requires that complainant should first notify the defendant institution to "define its position." Failure to respond, or complainant is dissatisfied with the answer given by the institution, has two months to sue for inaction.

Articles 173 and 175 allow complainant to file a challenge to an act taken by Community institutions, provided the complainant "must be in a position to establish either that he is the addressee of a measure of the Commission having specific legal effects with regard to him, which is, as such, capable of being declared void, or that the Commission, having been duly called upon to act in persuance of the second paragraph of Art. 175, has failed to adopt in relation to him a measure which he was legally entitled to claim by virtue of the rules of Community law. (See Case 246/21 Lord Bethell v. Commission 1982.)

Art. 184 of the EEC Treaty allows, in the course of other proceeding brought up to the Court of Justice, an indirect challenge to a regulation even after the time limitation has expired under Art. 173 on the basis of "illegal" exception. Accordingly, the complainant seeks the annulment of a directive because it is illegal.

Gabriel Sawma


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