Actions for Annulment and for Failure to Act

It is not just the Member States that are obliged to respect and properly implement EU law. The EU institutions must also act in accordance with the relevant rules concerning distribution of competences and take into account the EU’s general principles such as proportionality and legal certainty. There is no guarantee that all legislation and other legally relevant measures adopted in the EU are properly designed and conform to the requirements of EU law. A possibility for judicial review of the EU’s own institutions’ interpretation and application of the law is therefore essential and is provided for in Article 263 TFEU.

National courts and authorities cannot independently terminate or refuse to apply EU legislation if they consider that it is in breach of the Treaties or the general principles of EU law.5⁴ In such situations, Member States and the EU institutions can bring annulment proceedings before the Court of Justice. Such action may relate to lack of competence, to infringement of essential procedural requirements of the Treaties or of any rule of law relating to their application, or to misuse of power (Art 263 (2) TFEU).55 Annulment proceedings involve an assessment of the legality and the appropriateness of an act. A relatively common cause of action for annulment is that the Commission, Parliament, and Council have different views on the correct legal basis for a particular act. This is discussed in more detail in Chapter 4. National courts must also, when the question of an EU measure of general application arises in a case before them, request from the Court of Justice a preliminary ruling on the validity of the legal act. This is discussed below in the section on preliminary rulings.

Individuals can also have recourse to a plea of an act’s incompatibility with the Treaties. To do so directly before the Court of Justice is very difficult because it requires that the individual be regarded as directly concerned if he or she is to have access to justice (see section 5.7). It may be easier to initiate a national process where the issue of the legality of an EU legal act is raised and try to get the national court to seek a preliminary ruling from the Court of Justice on the issue.

Action for invalidity of a legal act under Article 263 TFEU is subject to fairly strict time limits. Action must be brought within two months of the publication of the measure or, where relevant, notification to the applicant or, in the absence thereof, of the day on which the applicant became aware of the act.

Within the context of an action for annulment of a measure, the Court can order suspension of operation of the contested measure (Art 278 TFEU). However, action for annulment is not in itself an obstacle to enforcement.

As noted in Chapter 2, the Court of First Instance (now General Court) in Case T-229/04 Sweden v Commission annulled a Commission directive due to infringement of, inter alia, the integration principle, the precautionary principle, and the principle of a high level of protection.5^{[1] [2]}

If the EP, the European Council, the Council, or the Commission, in infringement of the Treaties, fail to act, the Member States and the other institutions, under Article 265 TFEU, may appeal to the Court of Justice to have the infringement established. The same applies if Union agencies and bodies fail to take action. A prerequisite for such action is that the institution, body, office, or agency concerned has first been called upon to act, and that a certain time has elapsed thereafter. Any natural or legal person may complain to the Court that an institution, body, office, or agency of the Union has failed to address to that person any act other than a recommendation or an opinion (Art 265 TFEU).

• [1] 4 Case 314/85 Foto-Frost ECLI:EU:C:1987:452. 55 For various grounds for annulment, see C Barnard and S Peers (eds) European Union Law(Oxford University Press, 2014) 280.
• [2] 52 Case T-229/04 Sweden v Commission ECLI:EU:T:2007:217, para 262.