Actions for Failure to Act and Other Judicial Remedies Under EU Law

Actions for Failure to Act and Other Judicial Remedies Under EU Law

1. Introduction

The European Union’s judicial system is designed not only to determine whether institutions and Member States have acted unlawfully, but also to address situations in which they have failed to fulfil legal obligations. Public authority may violate the law through an unlawful decision, but it may also do so through silence, delay, refusal to exercise a legally required power, or failure to provide an effective remedy.

The Treaties establish several judicial procedures to address these different forms of legal failure. One of the most important is the action for failure to act under Article 265 of the Treaty on the Functioning of the European Union (TFEU). It allows eligible applicants to ask the Court of Justice of the European Union (CJEU) to establish that an EU institution, body, office, or agency has unlawfully failed to take a position or adopt a measure that it was legally required to adopt.

However, Article 265 is only one part of a wider system of judicial protection. The Treaties also provide for actions seeking compensation for damage caused by the Union, preliminary references concerning the interpretation and validity of EU law, pleas of illegality, interim measures, and procedures governing compliance with judgments.

These remedies address different legal problems:

• Article 265 concerns unlawful institutional inaction.
• Articles 268 and 340 concern compensation for damage attributable to the European Union.
• Article 267 establishes cooperation between national courts and the CJEU.
• Article 277 permits a party to challenge the applicability of certain general EU measures within existing proceedings.
• Articles 278 and 279 provide for interim judicial protection.
• Article 266 requires EU institutions and bodies to comply with judgments annulling their acts or declaring their failure to act unlawful.
• Article 270 provides a specialised judicial procedure for disputes between the Union and its staff.

The system also interacts with the principle of Member State liability, under which individuals may obtain compensation through national courts for damage caused by sufficiently serious breaches of EU law attributable to a Member State.

The constitutional significance of these remedies lies in their combined operation. Effective judicial protection requires more than the possibility of challenging an unlawful decision. It requires procedures capable of addressing institutional silence, correcting legal defects, compensating proven losses, and ensuring that judicial judgments produce practical consequences.

2. Article 265 TFEU: The Action for Failure to Act

Article 265 TFEU establishes the principal procedure for challenging unlawful inaction by EU institutions and other Union bodies.

The provision applies where the European Parliament, the European Council, the Council, the European Commission, or the European Central Bank has failed to act in infringement of the Treaties. It also applies, under the same conditions, to EU bodies, offices, and agencies.

The central purpose is to prevent institutions from avoiding their legal responsibilities through silence or failure to adopt a required position.

EU institutions exercise powers that sometimes involve discretion and sometimes impose specific legal duties. Where the law requires an institution to take a position or adopt a measure, an unjustified failure to do so may constitute an infringement.

For example, an EU regulation may require the Commission to adopt a decision once specified conditions have been satisfied. A procedural framework may require an institution to respond to an application within a prescribed period. An EU agency may be required to complete a regulatory assessment or adopt a legally necessary decision.

If the responsible body remains inactive in circumstances where EU law requires it to act, Article 265 may provide a judicial remedy.

The provision does not, however, establish a general right to compel EU institutions to pursue any policy, investigation, or administrative initiative requested by an individual. The applicant must identify a legal obligation to act and satisfy the standing and procedural conditions of the Treaty.

2.1. Which Institutions and Bodies May Be Challenged?

Article 265 expressly identifies the principal EU institutions:

• European Parliament.
• European Council.
• Council of the European Union.
• European Commission.
• European Central Bank.

The provision also extends to EU bodies, offices, and agencies.

This extension is important because the exercise of Union authority is distributed across a complex institutional and administrative structure. Agencies and other bodies may possess legally defined responsibilities in areas such as financial supervision, medicines, aviation, chemicals, data protection, and regulatory enforcement.

An action may therefore concern the failure of an EU agency to adopt a decision or take a position where its governing legislation imposes such a duty.

The identity of the defendant must be established carefully. The applicant must identify the institution or body legally responsible for the omitted measure, rather than merely the institution politically associated with the subject matter.

2.2. What Constitutes a Failure to Act?

Not every delay, disagreement, or administrative omission constitutes a failure to act under Article 265.

The applicant must establish that the institution has failed to take a position or adopt a measure in circumstances where it was legally required to do so.

The distinction between an unlawful omission and a refusal to grant a requested outcome is particularly important.

An institution may have a legal duty to examine a request and adopt a position, but it may retain discretion over the substantive decision. Article 265 does not automatically entitle the applicant to the outcome they prefer.

For example, an individual may ask the Commission to initiate infringement proceedings against a Member State. The Commission may examine the complaint but decide not to pursue it. Because the Commission has broad discretion over the initiation of infringement proceedings under Article 258 TFEU, the individual cannot ordinarily use Article 265 to compel the Commission to bring the action.

Similarly, an organisation cannot necessarily require an EU institution to adopt a new regulatory policy merely because it considers that policy desirable.

The relevant question is whether EU law imposed an obligation to act in the particular circumstances.

3. The Requirement to Call Upon the Institution to Act

Article 265 establishes a mandatory preliminary step.

An applicant cannot ordinarily bring an action immediately upon identifying institutional inaction. The institution, body, office, or agency must first be formally called upon to act.

This requirement serves two purposes.

First, it gives the institution an opportunity to fulfil its obligation without judicial proceedings.

Second, it establishes a clear starting point for the procedural time limits and identifies precisely what action the applicant considers legally necessary.

The request must therefore be sufficiently clear to enable the institution to understand what measure or position is being sought.

In Klein v Commission (Case C-430/20 P), the Court examined the requirements governing a request to act under Article 265. It confirmed that the request must indicate an intention to require the institution to define its position. An express reference to Article 265 is not indispensable, but the substance of the communication must make clear that the applicant is formally calling upon the institution to act.

The judgment illustrates why informal correspondence or general complaints may not be sufficient. A communication must have the necessary legal and procedural character.

3.1. What Should a Request to Act Contain?

A properly formulated request should identify:

• The institution, body, office, or agency concerned.
• The relevant legal provision or obligation.
• The measure or formal position that the applicant considers legally required.
• The factual circumstances establishing why action is necessary.
• The nature of the alleged failure to act.
• The applicant’s intention to pursue the matter if the institution continues to remain inactive.

The request should be sufficiently precise to avoid uncertainty about the action being demanded.

An applicant should also retain evidence of the date on which the request was submitted and received. This may become essential when calculating the subsequent procedural deadlines.

3.2. The Two-Month Period

Under Article 265(2), if the institution does not define its position within two months of being called upon to act, the applicant may bring proceedings within a further period of two months.

The ordinary procedural sequence is therefore:

1. The applicant formally calls upon the institution to act.
2. The institution has two months to define its position.
3. If it does not do so, the applicant may bring an action during the following two months.

These periods are established by the Treaty and should not be treated as flexible administrative targets.

An applicant who fails to comply with the relevant time limits may face an inadmissibility objection.

The precise calculation must also take account of the applicable Rules of Procedure and procedural rules governing time limits.

3.3. What Happens if the Institution Responds?

An important question is whether an institution can bring an Article 265 action to an end by responding to the applicant.

Generally, the adoption of a position before proceedings are brought removes the failure to act that forms the subject matter of the action.

However, the applicant may still disagree with the institution’s response.

In that situation, the legal character of the response becomes decisive.

If the institution has adopted a measure producing binding legal effects, the applicant may need to consider an action for annulment under Article 263 instead.

The Court has explained that Article 265 addresses a failure to define a position, not simply the adoption of a measure different from the one desired by the applicant.

In Klein v Commission, the Court clarified that a response may constitute a defined position even if it does not satisfy the applicant. The relevant question is whether the institution has taken a position on the request, rather than whether it has granted the requested outcome.

This principle prevents Article 265 from becoming a substitute for an appeal against an unfavourable administrative decision.

4. Who May Bring an Action Under Article 265?

Article 265 distinguishes between institutional applicants and private applicants.

The standing requirements differ according to the applicant’s legal status.

4.1. Member States and EU Institutions

Member States and the other EU institutions may bring proceedings under the first paragraph of Article 265 where an institution or body has failed to act in infringement of the Treaties.

These applicants do not need to establish the same individual concern requirements that apply to private persons.

Their standing reflects their constitutional and institutional responsibilities within the Union.

For example, one EU institution may challenge the failure of another institution to adopt a measure required by the Treaties or applicable legislation.

A Member State may also seek judicial review of institutional inaction where the relevant legal conditions are satisfied.

4.2. Natural and Legal Persons

Article 265(3) allows natural and legal persons to bring proceedings where an EU institution, body, office, or agency has failed to address to them an act other than a recommendation or an opinion.

This provision must be interpreted together with the standing rules applicable to private applicants under Article 263(4).

The applicant must demonstrate the required legal connection with the omitted measure.

In particular, the action may be available where the applicant would have been the addressee of the act that the institution failed to adopt.

It may also be available where the omitted measure would have produced binding legal effects capable of affecting the applicant’s interests by bringing about a distinct change in their legal position.

The Court has also recognised that an action may concern the failure to adopt a necessary preparatory measure where that measure forms an essential preliminary step in a procedure capable of leading to a binding act affecting the applicant.

In Bionorica and Diapharm v Commission (Joined Cases C-596/15 P and C-597/15 P), the Court examined the scope of private standing in actions concerning the failure to adopt measures with potential legal effects.

The judgment confirms that Article 265 does not give individuals a general right to challenge every failure by an institution to define its position. The applicant must fall within the categories protected by the Treaty.

4.3. The Importance of Binding Legal Effects

The nature of the omitted measure is central to private standing.

An individual cannot ordinarily bring an Article 265 action merely because the Commission has failed to publish a policy statement, express an opinion, issue a recommendation, or take political action requested by the applicant.

The provision expressly excludes recommendations and opinions from the category of acts that private applicants may demand through this procedure.

The applicant must identify a measure capable of producing the relevant legal effects.

This requirement preserves the distinction between legal accountability and political disagreement.

5. The Court’s Examination and the Consequences of a Judgment

When an Article 265 action is admissible, the Court examines whether the institution was under a legal obligation to act and whether it failed to fulfil that obligation.

The applicant must identify the relevant legal duty. The Court then considers the legal framework, the institution’s powers, the circumstances of the case, and any discretion conferred by the applicable provisions.

If the Court finds that the institution unlawfully failed to act, it declares the infringement.

However, the Court does not ordinarily substitute itself for the institution by adopting the omitted measure.

The judgment establishes that the institution has acted unlawfully through its inaction. The institution must then take the necessary measures to comply with the judgment under Article 266 TFEU.

This distinction is important because the institution may retain a degree of discretion when deciding how to fulfil its legal responsibilities.

A judgment declaring a failure to act does not necessarily determine the precise content of the eventual decision. It requires the institution to exercise its powers in accordance with EU law.

5.1. Article 266: Compliance with Judgments

Article 266 provides that an institution, body, office, or agency whose failure to act has been declared contrary to the Treaties must take the necessary measures to comply with the judgment.

This obligation is the counterpart to the obligation imposed on institutions whose acts have been annulled under Article 263.

Where a judgment establishes unlawful inaction, the institution cannot simply ignore the decision.

Depending on the circumstances, compliance may require:

• Adopting the omitted decision.
• Reopening an administrative procedure.
• Completing a legally required assessment.
• Reconsidering an application.
• Adopting a formal position in accordance with the applicable legal framework.
• Taking other measures necessary to eliminate the infringement.

The institution must respect the legal findings of the Court while exercising any remaining discretion lawfully.

5.2. Failure to Comply with a Judgment

Article 266 does not establish a separate automatic financial penalty for institutional non-compliance.

However, further legal consequences may arise depending on the circumstances.

If the institution adopts a new unlawful measure, that measure may be challenged under Article 263.

If it continues to fail to take a legally required position, the availability of further proceedings must be assessed in light of the procedural requirements and the legal effects of the earlier judgment.

An applicant may also consider an action for damages under Articles 268 and 340 where the conditions for non-contractual liability are satisfied.

The legal system therefore provides several routes for addressing continuing institutional failure, although each has distinct requirements.

6. The Relationship Between Articles 263 and 265

Actions for annulment and actions for failure to act are complementary procedures.

Article 263 concerns unlawful acts adopted by EU institutions and bodies. Article 265 concerns unlawful failures to take a position or adopt a required measure.

The distinction can be expressed simply:

• Article 263 addresses unlawful institutional action.
• Article 265 addresses unlawful institutional inaction.

The procedures cannot be used interchangeably merely because the applicant is dissatisfied with an institutional outcome.

Where an institution has adopted a binding decision, an action for annulment may be appropriate.

Where the institution has failed to define its position despite a legal obligation to do so, Article 265 may be relevant.

This distinction can become complicated where an institution responds to a request but refuses to adopt the particular measure sought.

If the response constitutes a definitive position, the failure to act may have ended. The applicant must then consider whether the response itself is reviewable under Article 263.

The correct remedy therefore depends on the legal character of the institution’s conduct, not merely on the applicant’s description of it.

7. Article 267 TFEU: Preliminary References

The preliminary reference procedure under Article 267 is one of the most important mechanisms of judicial cooperation in the European Union.

Unlike Articles 263 and 265, it does not ordinarily involve a direct action by an individual against an EU institution.

Instead, it operates through national courts.

Where a question concerning the interpretation of the Treaties or the validity or interpretation of an EU institutional act arises in national proceedings, the national court may refer the question to the CJEU if an answer is necessary to decide the case.

A national court against whose decisions there is no judicial remedy under national law must, subject to the established exceptions, refer a necessary question of EU law.

The CJEU provides the authoritative interpretation or determines the validity of the relevant EU measure. The national court then applies that ruling to the dispute before it.

7.1. Interpretation and Validity

Article 267 covers two principal categories of questions:

• Interpretation of the Treaties and EU legal acts.
• Validity of acts adopted by EU institutions, bodies, offices, or agencies.

The distinction is important.

An interpretation question concerns the meaning of an EU provision.

A validity question concerns whether the relevant EU act is legally valid in light of the Treaties and applicable rules of EU law.

In Foto-Frost v Hauptzollamt Lübeck-Ost (Case 314/85), the Court established that national courts cannot themselves declare EU acts invalid.

Where a national court considers a challenge to the validity of an EU act well founded, it must refer the question to the CJEU.

This principle preserves the uniformity of EU law by ensuring that the validity of Union measures is determined by the Union’s judicial system.

7.2. Preliminary References as an Alternative Route to Validity Review

An individual who cannot bring a direct action for annulment may sometimes challenge a national measure implementing or applying an EU act before a national court.

If the validity of the underlying EU measure is necessary to resolve the national dispute, the court may refer the question to the CJEU.

This can provide an indirect route to judicial examination of an EU act.

However, the procedure depends on the existence of genuine national proceedings and a relevant EU-law question.

It is not a general mechanism through which individuals can ask national courts to review EU legislation in the abstract.

The case law also places limits on attempts to use preliminary references to circumvent the time limits for direct actions for annulment. In TWD Textilwerke Deggendorf (Case C-188/92), the Court held that a person who clearly had standing to bring a direct action but allowed the time limit to expire could not later challenge the validity of the same decision through national proceedings.

The precise conditions of that rule must be satisfied; it does not automatically exclude all validity challenges brought through national courts.

8. Article 277 TFEU: The Plea of Illegality

Article 277 provides a further mechanism for challenging the applicability of an EU measure.

It permits any party, in proceedings where an act of general application adopted by an EU institution, body, office, or agency is at issue, to plead the grounds specified in Article 263(2) in order to invoke the inapplicability of that act.

The provision is important because the time limit for bringing a direct action for annulment may have expired.

A person may therefore be unable to challenge a general EU measure directly under Article 263 but may still raise its illegality within another admissible set of proceedings.

8.1. What Is the Purpose of the Plea?

The purpose is to prevent unlawful general measures from becoming immune from judicial examination solely because the direct-action time limit has passed.

For example, a general EU regulation may form the legal basis of an individual administrative decision. If the individual challenges that decision in proceedings before the EU courts, they may, where the relevant conditions are met, plead that the underlying regulation is unlawful.

The Court may then examine the legality of the general measure insofar as necessary to resolve the dispute.

8.2. Legal Consequences

A successful plea of illegality does not normally produce the same result as a successful action for annulment.

Under Article 263, the Court may declare the contested act void.

Under Article 277, the consequence is that the general measure is declared inapplicable in the proceedings before the Court.

The distinction is fundamental.

The plea does not ordinarily remove the measure from the EU legal order for all purposes. It prevents the measure from being applied in the particular legal dispute in which its illegality has been established.

Article 277 therefore complements Article 263 rather than replacing it.

9. Articles 268 and 340 TFEU: Actions for Damages Against the European Union

Judicial protection would be incomplete if individuals could establish that an EU institution had acted unlawfully but had no possibility of obtaining compensation for damage caused by that conduct.

Articles 268 and 340 TFEU establish the framework for non-contractual liability of the European Union.

Article 268 gives the CJEU jurisdiction over disputes relating to compensation for damage covered by the relevant paragraphs of Article 340.

Article 340 provides that the Union must make good damage caused by its institutions or servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

This is commonly described as the non-contractual liability of the European Union.

It may arise from unlawful legislative, administrative, regulatory, or other institutional conduct.

Importantly, liability may arise not only from a positive act but also from an unlawful omission where the institution failed to fulfil a legal obligation.

9.1. The Three Conditions for Non-Contractual Liability

The Court has established three cumulative conditions that must generally be satisfied:

1. The institution must have infringed a rule of law intended to confer rights on individuals, and the breach must be sufficiently serious.
2. The applicant must have suffered actual and certain damage.
3. There must be a direct causal link between the unlawful conduct and the damage claimed.

All three conditions must be satisfied.

The absence of any one of them is sufficient to defeat the claim.

9.2. A Rule of Law Intended to Confer Rights

The first requirement is that the rule infringed must be intended to confer rights on individuals.

Not every breach of an institutional rule creates a right to compensation.

Some rules regulate the internal organisation of institutions or establish general administrative responsibilities without necessarily conferring individual rights.

The applicant must therefore identify a rule that protects interests of the kind for which compensation is sought.

9.3. A Sufficiently Serious Breach

The breach must also be sufficiently serious.

In Bergaderm and Goupil v Commission (Case C-352/98 P), the Court clarified the test for establishing the Union’s non-contractual liability.

The decisive question is whether the institution manifestly and gravely disregarded the limits on its discretion.

Relevant considerations include:

• The clarity and precision of the rule breached.
• The degree of discretion available to the institution.
• The complexity of the situation being regulated.
• Whether the institution’s error was excusable.
• Whether the infringement was deliberate or persisted despite clear legal requirements.

Where an institution has little or no discretion, the finding of a sufficiently serious breach may be easier to establish if it violates a clear legal obligation.

Where the institution has broad discretion in a complex technical or economic field, the applicant may face a more demanding assessment.

The purpose is to balance effective protection of individuals with the need to allow institutions to perform complex administrative and regulatory tasks.

9.4. Actual Damage

The applicant must establish that real and certain damage occurred.

A purely hypothetical loss or an unsupported expectation of future profit will not ordinarily be sufficient.

Damage may be material or non-material, depending on the circumstances and the applicable legal principles.

Material damage may include financial losses, additional expenditure, or lost profits where sufficiently established.

Non-material damage may arise where unlawful institutional conduct causes harm to personal or professional interests recognised by law.

The applicant must provide evidence allowing the Court to assess the existence and, where possible, the extent of the loss.

9.5. Causal Link

The applicant must also demonstrate a direct causal relationship between the unlawful conduct and the damage.

It is not enough to establish that an institution acted unlawfully and that the applicant suffered a loss at approximately the same time.

The loss must be attributable to the conduct complained of.

If independent events or the conduct of third parties break the causal connection, the claim may fail.

The Court examines the circumstances to determine whether the damage is sufficiently directly connected to the institutional breach.

9.6. Independence from Actions for Annulment

An action for damages is an independent remedy.

A person does not necessarily have to obtain annulment of an EU act before claiming compensation for damage caused by it.

Similarly, the inadmissibility of an action for annulment does not automatically make a damages claim inadmissible.

However, the independence of the remedies does not allow applicants to use damages proceedings simply to circumvent the conditions governing direct judicial review.

The damages action has its own legal purpose and requires proof of the elements of non-contractual liability.

The distinction is particularly important where the applicant seeks compensation rather than the removal of a measure from the legal order.

9.7. Limitation Period

Claims for non-contractual liability against the Union are subject to a five-year limitation period under Article 46 of the Statute of the Court of Justice.

The period generally runs from the occurrence of the event giving rise to the damage.

Where the damage develops over time, the precise starting point may require examination of the circumstances.

The Statute also establishes rules concerning interruption of the limitation period.

Applicants should distinguish this five-year period from the much shorter time limit governing actions for annulment under Article 263.

10. Member State Liability for Breaches of EU Law

The non-contractual liability of the Union under Article 340 must be distinguished from the liability of individual Member States for breaches of EU law.

The principle of Member State liability was established in Francovich and Bonifaci (Joined Cases C-6/90 and C-9/90) and further developed in Brasserie du Pêcheur and Factortame (Joined Cases C-46/93 and C-48/93).

Under this principle, a Member State may be required to compensate individuals for damage caused by a breach of EU law attributable to that State.

The principle applies to breaches committed by different branches of the State, subject to the relevant legal conditions.

The conditions generally require:

• The EU rule infringed must be intended to confer rights on individuals.
• The breach must be sufficiently serious.
• There must be a direct causal link between the breach and the damage suffered.

These conditions are closely related to those governing the non-contractual liability of the Union.

However, the legal defendant and procedural route differ.

A claim against the European Union under Articles 268 and 340 is brought within the EU judicial system.

A claim against a Member State is generally pursued before the competent national court under national procedural rules, subject to the principles of equivalence and effectiveness.

10.1. Failure to Implement a Directive

A common example concerns the failure to transpose a directive.

Suppose a directive requires Member States to guarantee certain employment or consumer rights, but a State fails to adopt the necessary legislation.

An individual suffers financial loss because the right was not implemented.

Under Francovich, the State may be liable where the relevant conditions are met.

The principle ensures that the failure of a Member State to implement EU law does not necessarily leave individuals without a remedy.

10.2. Serious Breaches by National Authorities

Member State liability may also arise from other forms of unlawful conduct.

In Brasserie du Pêcheur and Factortame, the Court clarified that the principle is not limited to failures by national legislatures.

A sufficiently serious breach may arise from legislative, executive, administrative, or other conduct attributable to the State.

The assessment of seriousness depends on factors including the clarity of the rule, the discretion available to the national authority, the seriousness and persistence of the infringement, and whether the error was excusable.

The principle has also been developed in Köbler (Case C-224/01), where the Court recognised that a Member State may, in exceptional circumstances, incur liability for a sufficiently serious breach of EU law by a national court adjudicating at last instance.

This ensures that the State’s responsibility under EU law is not automatically excluded merely because the breach occurred within the judicial branch.

11. Articles 278 and 279 TFEU: Interim Judicial Protection

Judicial proceedings may take months or years to conclude. During that period, an applicant may face serious harm if the contested measure continues to operate or if an institution proceeds with an action that may later be found unlawful.

The Treaties therefore provide for interim judicial protection.

Articles 278 and 279 allow the EU courts to grant temporary relief where the circumstances justify it.

11.1. Article 278: Suspension of an Act

Article 278 establishes the general rule that actions brought before the CJEU do not automatically suspend the operation of the contested act.

A person who challenges an EU decision under Article 263 must therefore ordinarily comply with it while the proceedings are pending.

However, the Court may order suspension of the act where the circumstances require it.

Suspension is an exceptional form of protection because it temporarily prevents an otherwise operative EU measure from producing its normal effects.

11.2. Article 279: Other Interim Measures

Article 279 provides a broader power.

It allows the Court to prescribe any necessary interim measures in cases before it.

Depending on the circumstances, these may include temporary prohibitions, directions to preserve a legal or factual position, or other measures necessary to protect the effectiveness of the final judgment.

The provision is not restricted to applications for annulment. It may operate in other proceedings where interim relief is necessary and legally available.

11.3. Conditions for Interim Relief

The Court generally examines three principal considerations:

A prima facie case: The main action must raise serious legal and factual issues that justify provisional examination.

Urgency: The applicant must demonstrate that interim relief is necessary to prevent serious and irreparable harm before the final judgment.

Balance of interests: The Court weighs the applicant’s interests against those of the Union, the relevant institution, and any third parties affected by the proposed measure.

The assessment is specific to the circumstances.

An applicant cannot obtain interim relief merely by demonstrating that the contested act has serious consequences. The applicant must establish why those consequences require immediate judicial intervention before the main action is decided.

The purpose of interim measures is to preserve the effectiveness of judicial protection, not to prejudge the final outcome.

12. Article 270 TFEU: Disputes Between the Union and Its Staff

Article 270 establishes a specialised judicial route for disputes between the European Union and its servants.

These disputes are governed by the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants.

They may concern:

• Recruitment and appointment.
• Promotion and career progression.
• Remuneration and allowances.
• Disciplinary measures.
• Performance assessments.
• Working conditions.
• Termination of employment.
• Pensions and retirement rights.

The General Court has jurisdiction over staff disputes at first instance, subject to the applicable legal framework and procedural requirements.

This specialised system reflects the particular nature of the employment relationship between the Union and its staff.

Although staff disputes involve the application of general principles of EU law, they are not simply ordinary actions for annulment or damages. They operate within the procedural framework established for EU employment matters.

The existence of this specialised jurisdiction is important because the Union is both a public authority and an employer. Its employment decisions must respect the legal rights of its staff and remain subject to judicial scrutiny.

13. Article 269 TFEU: A Specialised Form of Judicial Review

Article 269 establishes a narrowly defined procedure concerning certain determinations adopted under Article 7 TEU.

Article 7 concerns the Union’s response to serious risks of, or serious and persistent breaches of, the values on which the Union is founded.

Article 269 provides that the Court of Justice may review the legality of an act adopted by the European Council or the Council under Article 7 only at the request of the Member State concerned.

The review is limited to compliance with the procedural requirements contained in Article 7.

The request must be made within one month of the relevant determination, and the Court must rule within one month of the request.

This is not a general appeal against political or institutional assessments under Article 7.

It is a specialised judicial procedure with a narrowly defined scope, reflecting the constitutional sensitivity of the mechanism.

Its inclusion demonstrates that the Treaties do not create one uniform procedure for every form of institutional decision. Certain areas are governed by specific jurisdictional and procedural rules.

14. The Relationship Between the Different Judicial Remedies

The effectiveness of the EU judicial system depends on the interaction of its different remedies.

A single dispute may involve more than one legal procedure, although each remedy must satisfy its own conditions.

Consider a company affected by a regulatory measure adopted by an EU agency.

If the company considers the measure unlawful, it may bring an action for annulment under Article 263 where it has standing.

If the measure causes immediate and serious harm, it may also request interim relief under Articles 278 and 279.

If the company has suffered damage as a result of sufficiently serious unlawful conduct by the agency, it may consider an action for damages under Articles 268 and 340.

If the measure is applied through national administrative proceedings, a national court may refer a relevant question of interpretation or validity under Article 267.

If the underlying measure is a general act whose direct-action time limit has expired, Article 277 may become relevant in proceedings before the EU courts, provided that its conditions are satisfied.

Similarly, where an EU institution has failed to adopt a legally required decision, Article 265 may be appropriate. If the unlawful inaction has caused actual damage, a separate claim for compensation may also be possible.

The remedies are therefore complementary, but they are not interchangeable.

The applicant must identify the legal problem and select the procedure that corresponds to the type of conduct, the desired judicial outcome, and the relevant standing requirements.

15. Practical Examples

Example 1: An EU Institution Fails to Adopt a Required Decision

An EU regulation requires the Commission to adopt a decision once specified legal conditions have been satisfied.

A company submits the required documentation, but the Commission does not take a position within the legally relevant period.

The company formally calls upon the Commission to act under Article 265.

If the Commission fails to define its position within two months, the company may bring proceedings within the further two-month period, provided that it satisfies the standing requirements.

The Court examines whether the Commission had a legal obligation to act and whether the omission constituted an infringement.

Example 2: The Commission Refuses to Initiate Infringement Proceedings

A business considers that a Member State has adopted national legislation incompatible with EU competition rules.

It submits a complaint to the Commission and requests that infringement proceedings be initiated under Article 258.

The Commission investigates the matter but decides not to bring proceedings.

The business cannot ordinarily use Article 265 to compel the Commission to initiate an infringement action. The Commission has discretion over the decision to pursue proceedings under Article 258.

The business may need to examine whether national legal remedies are available to challenge the relevant national measure.

Example 3: An Unlawful EU Decision Causes Financial Loss

An EU institution adopts a decision that unlawfully excludes a company from a regulatory procedure.

The company suffers actual financial damage.

Depending on the circumstances, it may challenge the decision under Article 263 and seek compensation under Articles 268 and 340.

The damages claim requires proof of a sufficiently serious breach of a rule intended to confer rights, actual damage, and a direct causal link.

The fact that the decision is annulled does not automatically establish all elements of liability.

Example 4: An Individual Challenges the Validity of an EU Regulation Before a National Court

An EU regulation forms the legal basis for a national administrative decision affecting an individual.

The individual challenges the national decision before a domestic court and argues that the underlying EU regulation is invalid.

The national court may refer the validity question to the CJEU under Article 267.

Under Foto-Frost, the national court cannot itself declare the EU regulation invalid.

If the CJEU finds the regulation invalid, the national court applies that ruling to the dispute before it.

Example 5: An EU Institution’s Inaction Causes Damage

An EU body fails to adopt a measure that it was legally required to adopt.

The failure is established through proceedings under Article 265.

The applicant also demonstrates that the unlawful omission caused actual and certain financial damage.

A separate damages action may be considered under Articles 268 and 340, provided that all conditions for non-contractual liability are satisfied.

The declaration of unlawful inaction and the award of compensation are distinct legal outcomes.

16. Key Takeaways

• Article 265 TFEU establishes the action for failure to act against EU institutions, bodies, offices, and agencies.
• An applicant must first formally call upon the relevant institution to act.
• The institution has two months to define its position; if it does not, an action may be brought within a further two-month period.
• The applicant must identify a legal obligation to act. Article 265 does not create a general right to compel institutions to pursue a preferred policy or administrative outcome.
• Natural and legal persons must establish the legal connection required by Article 265(3), including the relevant relationship with the omitted binding act.
• Article 266 requires institutions and bodies to take the measures necessary to comply with judgments declaring their inaction unlawful.
• Article 267 enables national courts to refer questions concerning the interpretation and validity of EU law to the CJEU.
• Under Foto-Frost, national courts cannot themselves declare EU acts invalid.
• Article 277 allows parties to plead the illegality of certain general EU measures within existing proceedings, even after the direct-action time limit has expired.
• Articles 268 and 340 govern compensation for damage caused by EU institutions and their servants.
• Non-contractual liability of the Union generally requires a sufficiently serious breach of a rule intended to confer rights, actual damage, and a direct causal link.
• Member State liability is a separate principle, established in Francovich and developed in Brasserie du Pêcheur and Factortame.
• Articles 278 and 279 provide for suspension of contested acts and other interim judicial measures.
• Article 270 establishes a specialised procedure for disputes between the Union and its staff.
• Article 269 provides a narrowly defined form of judicial review concerning certain acts adopted under Article 7 TEU.

17. Frequently Asked Questions

1. What is an action for failure to act under Article 265 TFEU?

It is a judicial procedure through which eligible applicants ask the CJEU to establish that an EU institution, body, office, or agency has unlawfully failed to adopt a measure or define a position that it was legally required to adopt.

2. Can an individual bring an action against the European Commission for failing to investigate a complaint?

Not automatically. The Commission has broad discretion over many investigative and enforcement activities, including whether to initiate infringement proceedings under Article 258. An individual must identify a specific legal obligation to adopt a measure and satisfy the standing requirements of Article 265.

3. Must the applicant formally request action before bringing proceedings?

Yes. Article 265 requires the institution to be called upon to act before the action may be brought. The request must be sufficiently clear to identify the measure or position sought and the intention to require the institution to respond.

4. How long does the institution have to respond?

The institution has two months from the formal request to define its position. If it does not do so, the applicant may bring proceedings within a further period of two months, subject to the applicable procedural rules.

5. Can an institution avoid an Article 265 action by refusing the requested measure?

Generally, a definitive response may constitute a defined position and bring the failure to act to an end, even if the institution refuses the applicant’s request. The applicant may then need to consider whether that response constitutes a reviewable act under Article 263.

6. What happens if the Court finds that an EU institution has unlawfully failed to act?

The Court declares that the failure to act infringes the Treaties. Under Article 266, the institution must take the measures necessary to comply with the judgment.

7. What is the difference between an action for annulment and an action for failure to act?

An action for annulment under Article 263 challenges an unlawful act adopted by an EU institution or body. An action under Article 265 challenges an unlawful failure to adopt a required measure or define a position.

8. Can individuals obtain compensation for damage caused by EU institutions?

Yes. Articles 268 and 340 provide a basis for claims seeking compensation for damage caused by EU institutions or their servants. The claimant must establish the required breach, actual damage, and direct causal link.

9. Does the annulment of an EU act automatically entitle the applicant to damages?

No. Annulment establishes that the act is unlawful, but a damages claim requires the separate conditions for non-contractual liability to be satisfied.

10. What is the difference between EU liability and Member State liability?

EU liability concerns damage caused by EU institutions or their servants and is governed by Articles 268 and 340. Member State liability concerns damage caused by breaches of EU law attributable to a Member State and is generally pursued before national courts under the principles established in Francovich and subsequent case law.

11. What is the purpose of Article 277 TFEU?

Article 277 allows a party to challenge the applicability of certain general EU measures within existing proceedings, even after the time limit for bringing a direct action for annulment has expired. A successful plea normally makes the measure inapplicable in the proceedings rather than annulling it generally.

12. Can an individual ask a national court to declare an EU regulation invalid?

No. Under Foto-Frost, national courts cannot themselves declare EU acts invalid. They may refer a validity question to the CJEU under Article 267.

13. Do actions before the EU courts automatically suspend the contested measure?

No. Article 278 establishes that actions before the CJEU do not ordinarily have suspensory effect. However, the Court may grant suspension or other interim measures under Articles 278 and 279 where the legal conditions are satisfied.

14. Which court hears actions for damages against the European Union?

The General Court generally has jurisdiction at first instance over actions for non-contractual liability under Articles 268 and 340, subject to the allocation of jurisdiction established by the Treaties and the Statute of the Court of Justice.

18. Conclusion

The judicial remedies established by the Treaties form an interconnected system for protecting the rule of law within the European Union.

Article 265 addresses institutional inaction and ensures that EU institutions cannot avoid legal responsibility by failing to adopt measures they are required to take. Articles 268 and 340 provide a mechanism for compensating individuals who suffer damage as a result of unlawful institutional conduct. Article 267 supports the uniform interpretation and validity of EU law through cooperation between national courts and the CJEU. Article 277 protects the possibility of challenging the applicability of certain general measures, while Articles 278 and 279 preserve effective judicial protection through interim relief.

The system also recognises that institutional responsibility does not end with the delivery of a judgment. Article 266 requires the relevant institution to take the necessary measures to comply, while specialised procedures such as Article 270 ensure that disputes within the Union’s own employment relationships remain subject to judicial control.

These remedies must be understood together, but their legal functions remain distinct. An action for failure to act does not automatically provide compensation. A damages claim does not necessarily annul the unlawful measure. A preliminary reference does not replace a direct action where that action is available, and a plea of illegality does not generally remove a measure from the EU legal order.

The constitutional principle underlying the system is that effective judicial protection requires a remedy appropriate to the nature of the legal violation. The European Union’s institutions must respect the law when they act, when they fail to act, and when they exercise their powers in ways that affect the rights and interests of individuals.

The combination of direct actions, preliminary references, damages claims, interim protection, and compliance procedures gives practical effect to that principle. It ensures that the rule of law within the Union is supported not merely by the existence of legal obligations, but by judicial mechanisms capable of examining, correcting, and remedying their violation.

19. Primary Legal Sources and Further Reading

Treaty Provisions

• Article 7 TEU – Procedure concerning the values of the European Union
• Article 263 TFEU – Actions for annulment
• Article 265 TFEU – Actions for failure to act
• Article 266 TFEU – Compliance with judgments
• Article 267 TFEU – Preliminary references
• Article 268 TFEU – Jurisdiction in disputes concerning compensation
• Article 269 TFEU – Special judicial review under Article 7 TEU
• Article 270 TFEU – Disputes between the Union and its staff
• Article 277 TFEU – Plea of illegality
• Article 278 TFEU – Suspension of contested acts
• Article 279 TFEU – Interim measures
• Article 340 TFEU – Non-contractual liability of the European Union

Leading Court of Justice Decisions

• Francovich and Bonifaci, Joined Cases C-6/90 and C-9/90 – Establishment of the principle of Member State liability for breaches of EU law.
• Brasserie du Pêcheur and Factortame, Joined Cases C-46/93 and C-48/93 – Conditions governing Member State liability and the requirement of a sufficiently serious breach.
• Foto-Frost v Hauptzollamt Lübeck-Ost, Case 314/85 – Exclusive authority of the CJEU to declare EU acts invalid.
• TWD Textilwerke Deggendorf, Case C-188/92 – Legal certainty and restrictions on indirect challenges to EU decisions after the direct-action time limit has expired.
• Köbler, Case C-224/01 – Member State liability for sufficiently serious breaches of EU law by courts of last instance.
• Bergaderm and Goupil v Commission, Case C-352/98 P – Conditions for the non-contractual liability of the European Union.
• Bionorica and Diapharm v Commission, Joined Cases C-596/15 P and C-597/15 P – Standing of private applicants and the scope of actions for failure to act.
• Klein v Commission, Case C-430/20 P – Formal requests to act, procedural requirements, and the definition of an institutional position.
• Ombudsman v Staelen, Case C-337/15 P – Non-contractual liability and the requirement of a sufficiently serious breach.

Institutional Resources

• EUR-Lex – Actions for Failure to Act – Overview of Article 265 and its procedural requirements.
• EUR-Lex – Actions for Damages – Explanation of non-contractual liability and compensation claims against the Union.
• CURIA – The Court of Justice – Overview of the Court’s jurisdiction, including actions for failure to act.
• CURIA – Procedural Texts – Statute of the Court of Justice and Rules of Procedure.
• Publications Office of the European Union – The ABC of EU Law – Institutional explanation of judicial protection, interim measures, and the application of EU law.