67Account must also be taken of the fact that, in an action for a declaration of failure to act, the Community judicature cannot substitute itself for the Commission and by final judgment adopt the provisions which the Commission should have adopted in order to fulfil its obligation to act as provided for in Community law. As Advocate General Elmer pointed out in his Opinion in Case C-68/95 T. Port [1996] ECR I-6065, I-6068), ‘nor can the Court, in an action for failure to act, order the Commission to adopt the provisions referred to in Article 30 of Regulation [No 404/93]: it can only, if occasion should arise, declare that by not adopting such provisions the Commission has infringed the Treaty’ (point 52 of the Opinion). Therefore, in formulating the form of order sought before the Court of First Instance, the applicant could not use the same terms as those in the letter of formal notice sent to the Commission; it could only request the Court to declare that the obligations imposed upon the Commission had been breached.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.