Article 230 and 232
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ART 230 AND ART 232:

Both are intended to provide complimentary remedies: acting illegally and illegally failing to act.

Note Art 232 applies to pure omissions and not a refusal to act which is characterised as a negative decision, and therefore actionable under Art 230.

The ruling in Eridania v Commission was to the effect that one couldn't use one Art in order to evade the restrictions placed on the other.

ART 232 FAILURE TO ACT: PRIVILEGED APPLICANTS-

The ruling in Parliament v Council, in which Parliament successfully challenged the Council's failure to introduce a common policy for transport, suggests that the challenged act must be a reviewable act that has legal effects. (Similar to Art 230).

ART 232 FAILURE TO ACT: NON-PRIVILEGED APPLICANTS-

para 3 of Art 232 limits any litigation against the institutions to legally binding measures only. Therefore, whereas a failure to pass a regulation or directive can be litigated, a mere opinion or recommendation cannot.

In Bethel v Commn, the plaintiff was left entirely with out a remedy because the measure that he was trying to enforce was not at that time, covered by a regulation, etc.

ENU v Commission, it was held that the applicant under Art 232 must have direct and individual concern (like Art 230).

SUMMARY:

A successful challenge under Art 232 requires:

·         Locus standi

·         A request by the applicant to the defendant to define their position, and a failure by the defendant to define their position within a period of 2 months.

·         An failure to adopt an action the part of the defendant institution where it is under a duty to do so.

Other Notes in this Category

1. Art 241: The Plea Of Illegality
2. Article 230 and 232
3. Democracy within the European Community
4. Grounds for Review
5. Locus Standi

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