EU Law: Annulment, Omission, and Infringement Actions
Actions for Annulment, Omission, and Infringement in EU Law
Action for Annulment (Judicial Review of Community Law)
As specified in Articles 263 and 264 of the Treaty on the Functioning of the European Union (TFEU), the action for annulment concerns the judicial review of Community law in positive acts. These acts are the decisive actions of the institutions that produce legal effects against third parties, including regulations, directives, and decisions, as well as some atypical acts.
Three conditions must be met: the acts must be binding, they must be final actions, and they must have effects against third parties. Internal measures or preparatory acts cannot be challenged, only those with external effects.
Who Can Sue?
The Treaty distinguishes between privileged and underprivileged applicants:
- Privileged applicants: Institutions and Member States can invoke this action without justification.
- Underprivileged applicants: Natural or legal persons can only appeal decisions that affect them directly and individually, or against regulations that concern them directly and individually.
Grounds for Challenge
Resources can only be challenged for the following reasons:
- Lack of competence of the issuing authority.
- Violation of essential procedural requirements (e.g., legal basis, mandatory opinions).
- Violation of any rule of law relating to its implementation.
- Misuse of powers (détournement de pouvoir), where the act is formally correct but its purpose is contrary to the public good.
Deadline and Effects
The deadline to appeal is two months from notification or publication. If the General Court (GC) believes the demand is unfounded, it will have no effect. However, if the GC estimates the demand, it will declare the act invalid, either totally or partially. This revocation is retroactive, although the GC can limit retroactivity.
Action for Omission or Inactivity (Judicial Review of Community Legality)
Governed by Article 265 of the TFEU, this action aims to address the inaction of institutions when they are required to act.
Who Can Sue?
- Defendant: Community institutions that fail to act.
- Applicant: Member States and Institutions (privileged applicants). Underprivileged individuals may sue when an obligatory act is not addressed to them, causing them direct damage.
Procedure and Effects
Once the omission of the act is established, a requirement must be made for the institution to act, allowing a margin of 2 months to act. After this period, there are two months to file the claim. Judgments of this type are declarative, merely stating whether the abstention violates EU law. The GC cannot take the decision itself.
Infringement Action
This action verifies that Member States respect Community law and is governed by Articles 258-260 of the TFEU. It addresses the concept of non-compliance.
Through this resource, the Court of Justice (CJ) addresses violations by a Member State of any obligation imposed upon it by EU law, whether through action or omission, and regardless of the state organ responsible.
Who Can Sue?
Other Member States and the Commission can sue the author of the breach.
Procedure
When the Commission brings the action, the procedure has two phases: administrative and judicial. In the administrative phase, when the Commission finds a violation, it sends a letter to the Member State describing the violation and requesting comments. If the Member State’s response is unconvincing or absent, the Commission issues a reasoned opinion explaining how to end the violation. If the Member State does not comply with the opinion, the Commission can report it to the CJ, opening the adversarial judicial phase.
Judgment
The procedure concludes with the CJ’s judgment, which can either dismiss the complaint or uphold it in whole or in part, noting the failure of the state. The judgment is declarative, but the state must take the necessary measures to end the violation.