Keywords
Summary

Keywords

1 Actions for failure to act - Failure remedied after initiation of the proceedings - Subject-matter of the action ceasing to exist - No need to adjudicate

(EC Treaty, Arts 175 and 176)

2 Actions for failure to act - Notice given to the institution - Definition of position within the meaning of the second paragraph of Article 175 of the Treaty - Definition

(EC Treaty, Arts 173 and 175, second para.)

3 Non-contractual liability - Conditions - Illegality - Damage - Causal link - Unlawful conduct consisting in failure to act in relation to a legislative act - Sufficiently clear breach of a higher-ranking rule of law for the protection of individuals

(EC Treaty, Art. 215, second para.)

4 Agriculture - Uniform laws - Maximum residue limits of veterinary medicinal products in foodstuffs of animal origin - Procedure for their establishment - Regulation No 2377/90 - Commission's obligations - Scope

(Council Regulation No 2377/90, Art. 6(2) and (3), and Art. 8(3)(b))

Summary

5 The remedy provided for in Article 175 of the Treaty is founded on the premiss that unlawful inaction on the part of the European Parliament, the Council or the Commission enables the other institutions and the Member States and, in certain cases, private persons, to bring the matter before the Court of Justice or the Court of First Instance 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 of the Treaty, is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court of Justice or of the Court of First Instance, without prejudice to any actions to establish non-contractual liability to which the aforesaid declaration may give rise.

Where the act whose absence constitutes the subject-matter of the proceedings is adopted after expiry of the period of two months following the request to act, but before judgment, a declaration by the Court of Justice or by the Court of First Instance to the effect that the initial failure to act was 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 responds within a period of two months after being called upon to act, the subject-matter of the action ceases to exist, so that there is no need to adjudicate.

6 An act which is not challengeable by an action for annulment may constitute a definition of position capable of terminating the failure to act if it is the prerequisite for the next step in a procedure which has, in principle, to culminate in a legal act which itself will be challengeable by an action for annulment.

7 The Community's non-contractual liability is not incurred unless, first, a set of conditions relating to the illegality of the Community institution's conduct which is the subject of complaint, the occurrence of actual damage and the existence of a causal link between the unlawful conduct and the harm alleged are all fulfilled, and, second, in the case of failure to act relating to a legislative act, unless it is proved that there has been a sufficiently clear breach of a higher-ranking rule of law for the protection of individuals.

8 Council Regulation No 2377/90 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin makes provision for various annexes in which a pharmacologically active substance intended for use in veterinary medicines to be administered to food-producing animals may be included. To that end, pursuant to Article 6(2) and (3) and Article 8(3)(b) of that Regulation, the Commission is to submit applications to the Committee for Veterinary Medicinal Products, prepare a draft of the measures to be taken and, where the measures envisaged are not in accordance with the opinion of the Committee, without delay propose to the Council the measures to be adopted.

On that point, the Commission is not in breach of either the principle of legal certainty or that of the protection of legitimate expectations, in that, when confronted with a matter which is highly complex and sensitive both scientifically and politically, it reconsiders it for a certain time and, rather than submitting a proposal to the Council immediately, first asks the Committee for Veterinary Medicinal Products for a further opinion. On the one hand, the Commission must be accorded the right to seek such an opinion even though Regulation No 2377/90 is silent on the point, and, on the other, given that it is not open to anyone, in the absence of precise assurances given by the administration, to plead breach of the principle of protection of legitimate expectations, it cannot be inferred from the relevant rules that the period within which the Commission had to act was perfectly foreseeable and that precise assurances were given to those concerned with regard to that period.