유럽공동체법상 不作爲訴訟에 대한 再檢討

Abstract

This paper reviews one of the legal remedies provided in the Treaty establishing European Community (the Treaty), that is, action for failure to act. Although the action for failure to act and the direct annulment action have many similarities, they differ in their nature basically because, while the former may be used to enforce an institution of the Community which fail to act, to define its position, the latter may be used to quash illegal acts of the institutions of the Community. And also the action for failure to act is different from the enforcement action because, while the former may be used against the failure of act of the institutions of the Community, the latter may be used against the failure of act of the Member State. The action for failure is a very important tool to fill the gap which the direct annulment action can not cover. But the European Court of Justice has adopted a very restrictive interpretation on Article 232 which provides for the action for failure to act. Thus, in reality, it is very rare to succeed in the actions for failure to act. And also, there is a loophole case which can not be filled with the action for failure to act and with the direct annulment action. In the loophole case, there is no way of legal remedy. The loophole case arises as follows: an institution of the Community fails to act in violation of the Treaty; then an would-be applicant for the action for failure to act calls the institution to act; following the request or demand to act, the institution defines the position by way of refusal to act in the form other than legally binding acts. In this situation, it is impossible to institute a direct annulment action against the refusal because the refusal is not legally binding. And again, it is also impossible to institute an action for failure to act because the institution in question defined its position according to the request.