Judgment_paragraph 71 · Éditions Odile Jacob SAS v European Commission (T-471/11)

71As a preliminary remark, and without there being any need to rule on their admissibility, the interveners’ arguments claiming that the applicant can challenge the failure by the Commission to adopt measures other than the contested decision only in an action for failure to act must be rejected. Article 266 TFEU does not establish a particular means of ensuring compliance with the judgments of the European Union Courts. If a person considers that the act adopted to replace the annulled act is not consistent with the grounds and the operative part of the annulled act, he may bring a new action for annulment under Article 263 TFEU. In contrast, the action for failure to act provided for by Article 265 TFEU is the appropriate means for obtaining a declaration that the failure by an institution to take the necessary measures to comply with a judgment is unlawful (SIC v Commission, T‑297/01 and T‑298/01, ECR, EU:T:2004:48, paragraph 32) or for determining whether, in addition to replacing the measure annulled, the institution was also bound to take other measures relating to other acts which were not challenged in the initial action for annulment (Asteris and Others v Commission, paragraph 56 above, EU:C:1988:199, paragraphs 22 to 24, and Asia Motor France and Others v Commission, T‑387/94, ECR, EU:T:1996:120, paragraph 40). In the present case, the applicant is entitled to bring an action for annulment before the General Court because it is precisely challenging the way in which the Commission executed the General Court’s judgment. Whilst it is true that it complains that the Commission did not adopt other decisions and that that challenge could be made in proceedings on a failure to act, this does not affect the admissibility of the present complaint in so far as, in criticising the lawfulness of the contested decision, the applicant relies on arguments alleging that the Commission should have adopted other measures in the place of that decision.