1. Introduction: a Union under the rule of law facing inaction – the constitutional paradox of institutional omission
After the attack carried out on Israeli soil by Hamas and other armed groups on 7 October 2023, Israel launched a large-scale military operation in the Gaza Strip on 9 October 2023. Since January 2024, the International Court of Justice (ICJ) has established the existence of a plausible risk of genocide committed by Israel in the Gaza Strip against the Palestinian population.Footnote 1 It has also recalled that both states and international organisations are bound by a positive obligation to prevent genocide.Footnote 2 This affirmation of international law brings to light a central question: how can the European Union (EU), which proclaims itself a ‘community based on the rule of law’,Footnote 3 remain passive in the face of the gravest violation of jus cogens?
The issue is not merely political: it is structurally legal. The EU institutions have acknowledged the gravity of the situation in the Gaza Strip – a Palestinian territory illegally occupied by IsraelFootnote 4 – and issued multiple humanitarian statements.Footnote 5 Yet, they have refrained from taking any substantial measures and sanctions to prevent international crimes by Israel, in contradiction to the values and obligations that underpin its external action (Articles 2, 3(5) and 21 TEU) regarding respect for international law and the normative coherence of the Union’s external policy.
This inaction raises a constitutive tension: what is the value of a legal order founded on legality when its institutions remain inert in instances where the law requires them to act? It is precisely this tension that the action for failure to act under Article 265 TFEU seeks to address.
Designed as the counterpart to the action for annulment (Article 263 TFEU), it enables the EU courts to find that an institution has unlawfully failed to act where it was legally required to do so, thereby ensuring the completeness of judicial review, including in situations of silence and inaction of this institution. Yet, this mechanism, central to institutional responsibility, has become increasingly difficult to access for non-institutional actors, as its admissibility conditions have been aligned with the restrictive logic of the action for annulment.
This paradox is illustrated by the action brought in July 2025 by the French association Juristes pour le Respect du Droit International (JURDI) before the General Court of the European Union (GCEU), following two letters of formal notice sent in May 2025 to the European Commission and the Council of the EU. Relying on the findings of the ICJ, of the International Criminal Court (ICC),Footnote 6 on numerous reports of United Nations organsFootnote 7 and of international non-governmental organisationsFootnote 8 documenting acts of genocide or crimes against humanity and breaches of peremptory norms of international law, JURDI sought the condemnation of the European Commission and of the Council of the EU for their (illegal) inaction in the face of international crimes committed by Israel in the Gaza Strip. It requested that they act pursuant to the obligation to prevent those crimes, something that is incumbent upon them.
JURDI’s pleas were twofold: first, it asked the General Court to acknowledge, in the context of the risk of genocide in the Gaza Strip, the unlawful inaction (failure to act under Article 265 TFEU) of the European Commission and of the Council of the EU for having refrained from adopting measures vis-à-vis Israel; second, it reminded these institutions of their duty to remedy this omission within a reasonable period, notably through the implementation of appropriate measures. Among other measures, JURDI requested the issuance of an official communication recognising the plausible risk of genocide in the Gaza Strip and the illegality of the occupation of the Palestinian Territory; the suspension of the EU–Israel Association Agreement (1995)Footnote 9 and its related sectoral arrangements; the suspension of Israel’s participation in ongoing European funding programs, notably Horizon Europe; the initiation of an independent and public audit of all EU–Israel cooperation programs; the imposition of an embargo on arms and sensitive technologies; the adoption of targeted sanctions against Israeli officials responsible for crimes committed in the Gaza Strip; and the exclusion of Israeli financial institutions from the SWIFT interbank network and other European payment facilities.
The action has been dismissed as inadmissible by the General Court’s order of 5 September 2025.Footnote 10 An appeal has been lodged against this decision and is currently pending. Although dismissed, this action is unprecedented: for the first time, a civil society actor relied on Article 265 TFEU to seek recognition of the justiciability of a positive obligation arising from jus cogens.
The questions that follow are twofold. First, can the action for failure to act become the instrument enabling civil society to ensure that the EU complies with its positive obligations? Second, and more broadly, can the EU courts legally confront the EU failure to act when its institutions disregard peremptory norms?
These questions matter beyond the JURDI case. They relate to the constitutional structure of the EU legal order and to the role of the judiciary in safeguarding legality. Since the Les Verts Footnote 11 and Inuit Tapiriit Kanatami cases,Footnote 12 the EU courts have affirmed that the Treaties establish a complete system of legal remedies. Yet this system becomes illusory if the judiciary cannot act upon omissions where the law requires action.
This article thus examines the constitutional potential of the action for failure to act in safeguarding the European rule of law. Section 2 analyses its architecture, between institutional accountability and procedural inaccessibility. Section 3 studies the duty to act in light of Articles 2, 19, 21 and 265 TFEU, combined with the peremptory norms of international law. Section 4 presents the action brought by JURDI as the first attempt by civil society to constitutionalise the duty to act. The thesis is simple: where the law commands action, the EU’s silence and inaction are not political – they become a legal failure to act.
2. The legal architecture of Article 265 TFEU: between institutional responsibility and procedural inaccessibility
A. The action for failure to act within the EU system of legality
The action for failure to act is one of the most distinctive instruments of EU litigation. Provided for in Article 265 TFEU, it seeks not to challenge an act, but an omission where the law requires action.Footnote 13 This particularity places it at the heart of the principle of legality: institutional power is exercised both through action and through lawful abstention. In a system governed by the rule of law, as much as an illegal action must be annulled, so too an illegal abstention must be sanctioned.
Historically, the judgment in Les Verts ascertained the importance of a comprehensive judicial review of all EU institutions, including the possibility of sanctioning omissions.Footnote 14 Les Verts was followed by a few other judgments, confirming that failure to fulfil an obligation to act constitutes an autonomous and justiciable form of conduct.Footnote 15 The action for failure to act thus embodies an implicit principle of institutional responsibility: the exercise of power includes vigilance with respect to the duty to act. It completes the system of remedies established by Article 19 TEU.Footnote 16
B. A mechanism limited by procedural constraints
Despite this purpose, the mechanism remains constrained by the strict formalism inherited from the action for annulment (Article 263 TFEU). Moreover, the action for failure to act imposes a prior letter of formal notice and a short deadline for bringing the action. It is also subject to the requirements of legal representation and compliance with e-Curia formalities.
More importantly, since Lütticke, the Court of Justice of the EU (CJEU) has transposed to the action for failure to act the criteria of ‘direct and individual concern’ developed for the action for annulment.Footnote 17 The case law took literally the definition of the concept of individual concern given in Plaumann and applied it to the realm of the action for failure to act: the applicant must demonstrate that they are directly and individually concerned by the acts they asked the EU institution to take.Footnote 18
This transposition – not expressly required by the Treaties – has significantly restricted access for natural persons. This transposition has also significantly restricted access for NGOs and associations, even when they act to enforce a social purpose of general and public interest. Natural and legal persons must demonstrate that the institution’s inaction directly and individually affects them, beyond mere general expectations. Hence, their access to an action for failure to act remains very restricted. In Inuit Tapiriit Kanatami, the CJEU reaffirmed that civil society does not possess a general right of action, even where public interest is involved.Footnote 19
This exclusion creates a paradox: the very instrument intended to prevent institutions from evading legality through silence and inaction becomes inaccessible to those most affected by that failure to act. As a result, in practice the action for failure to act remains almost exclusively an interinstitutional litigation tool.
C. A contrasting jurisprudential evolution
Recent case-law reveals some, albeit uneven, loosening. Certain decisions recognise a functional interest in the review of legality. In EIB v ClientEarth, the Court of Justice accepted that an environmental NGO could access an internal review mechanism on the basis of the right to an effective remedy.Footnote 20 In Carvalho, the Court recalled that admissibility rules must not deprive applicants of all access to court.Footnote 21 More recently, in Medel, the General Court recognised that an organisation of judges could act in defence of the rule of law, thereby opening the possibility for a procedural standing grounded in the protection of the Union’s structural values.Footnote 22
Yet, this trend remains fragile. Procedural practice has reduced its scope, reserving recourse for interinstitutional disputes. Recent case law – wavering between openness (ClientEarth, Medel) and closure (ST v Frontex)Footnote 23 – confirms this ambivalence and leaves a gap in the completeness of the European Union’s judicial system.
D. Article 47 of the Charter and the emergence of an institutional interest
Article 47 of the Charter of Fundamental Rights of the European Union has become pivotal for the reinterpretation of Article 265 TFEU. By guaranteeing the right to an effective remedy, it requires a teleological reading of procedural requirements: they must protect legality and not undermine it.
The judgments in Unibet, Rosneft and Carvalho affirm that procedural frameworks must ensure complete judicial review, including in relation to omissions.Footnote 24 This dynamic supports the emergence of a concept of ‘institutional interest’: the possibility for collective entities to act to safeguard the structural integrity of EU legality. In a legal order founded on the rule of law, the defence of legality is a shared interest, belonging to the EU institutions, Member States and civil society.
E. A constitutional mechanism under constraint
The action for failure to act illustrates a structural contradiction: a constitutional purpose is constrained by procedural paralysis. Jurisprudential developments remain hesitant, as they oscillate between functional openness and preservation of the traditional paradigm.
JURDI’s action intervenes precisely in this breach: it invokes Article 265 TFEU to establish that EU positive obligations to prevent genocide impose strict limits on institutional discretion. The action brings to the fore the idea that legality binds institutions also in their silence and inertia, and that the EU courts must ensure the completeness of judicial review.
Article 265 TFEU could thus become the vehicle of a revived notion of institutional responsibility, grounded in the Union’s foundational values. Whether such a transformation occurs will depend on the willingness of the EU courts to adapt a mechanism that was originally conceived for interinstitutional relations to the needs of a mature constitutional legal order.
3. The duty to act: the EU’s positive obligations between EU law and international law
A. The normative foundations of the duty to act: Articles 3 and 21 TEU and the unity of EU external action
The EU presents itself as an autonomous legal order, but also as an international actor guided by normative objectives: the promotion of peace, international security, solidarity and respect for international law (Art 3(5) TEU). These objectives are not mere political orientations: Article 21 TEU grants them binding legal force.Footnote 25
EU external action must be guided by the principles constituting its identity – democracy, the rule of law, the indivisibility of human rights – and must respect the principles of the UN Charter and international law. These provisions impose a positive obligation of coherence: institutions cannot remain passive in the face of manifest violations of these values, particularly when they have publicly recognised their gravity. The combined reading of Articles 2, 3 and 21 TEU with Article 265 TFEU forms the legal basis for a genuine duty to act.
The case law has reinforced this articulation. In the Kadi cases of 2008 and 2013, the CJEU recalled that the EU cannot disregard general international law and lays the groundwork for a compliance review of secondary legislation with higher-ranking norms (including fundamental rights).Footnote 26 In the Front Polisario judgments of 2016 and 2024, the CJEU required EU external action to comply with international humanitarian law.Footnote 27 The Rosneft and Sea-Watch cases extended judicial review to domains traditionally linked to the Common Foreign and Security Policy where superior norms were at stake.Footnote 28
This jurisprudence illustrates a growing trend towards affirming the unity of EU legality, which means international law constitutes a structural component of EU primary law. Thus, the duty to act before grave violations of international law is not optional: it stems from the normative coherence between the Union’s internal values and its external commitments.
B. Positive obligations derived from jus cogens: Prevention of genocide and respect for international humanitarian law
The EU’s duty to act finds its most compelling foundation in the positive obligations of prevention arising from jus cogens. In Bosnia and Herzegovina v Serbia, the ICJ indicated the binding nature of the obligation to prevent the crime of genocide and the framework for its implementation.Footnote 29 Knowledge, or the reasonable possibility of knowing, of a serious risk of genocide triggers an immediate obligation of prevention that is binding on all subjects of international law, including international organisations.Footnote 30
Hence, JURDI’s application to the CJEU requesting that it asks the European institutions to publicly acknowledge the existence of a plausible risk of genocide – as the ICJ did – aims to bind the EU institutions to the resulting positive obligation of prevention. The ICJ’s 2024 orders in South Africa v Israel reaffirmed that prevention is an autonomous obligation for both states and international organisations,Footnote 31 which arises as soon as the risk of genocide is plausible. The ICJ declared this risk plausible for the Palestinian population of the Gaza Strip. This risk has also been corroborated by arrest warrants issued by the ICC in connection with alleged international crimes committed in the Gaza Strip, by reports of United Nations organs and of international non-governmental organisations.Footnote 32
The EU institutions – the Council, the Commission – and the European External Action Service (EEAS)Footnote 33 – have publicly acknowledged that the humanitarian situation in the Gaza Strip is horrific,Footnote 34 but they have not officially recognised the risk of genocide of the Palestinian population of the Gaza Strip. Such objective knowledge, nevertheless, places the EU within the category of actors bound to name publicly the plausible risk of genocide and to give up its silence on this matter. Such objective knowledge also places the EU within the category of actors bound to act in order to fulfil its obligation to prevent genocide in the Gaza Strip.
In Bosnia and Herzegovina v Serbia, the ICJ indicated that this obligation consists of using all available means to prevent genocide as far as possible.Footnote 35 The obligation to act is one of conduct, not one of result. Various parameters operate when assessing whether a state or an international organisation has duly discharged this obligation. However, according to the ICJ in Bosnia and Herzegovina v Serbia, the main parameter is clearly the capacity to influence effectively the action of the entity likely to commit genocide, which varies greatly from state to state and from one international organisation to another. This capacity itself depends, among other things, on the geographical distance from the scene of the events, the strength of the political links and links of all other kinds (in the military, economic, commercial, financial or scientific fields) and on the capacity to influence. Moreover, groups of states acting in a coordinated manner are more likely to have larger capacity of influence.
JURDI’s application to the Court of Justice requesting that the EU institutions must act by taking concrete measures against Israel and by using their influence to prevent it from committing genocide in the Gaza Strip is based on the obligation to prevent genocide as defined by the ICJ. In addition, Article 3(5) TEU requires the EU to contribute ‘to the strict observance and development of international law’. Combined with Common Article 1 of the Geneva Conventions (‘to respect and ensure respect’ for international humanitarian law)Footnote 36 and the existence of numerous crimes against humanity committed by Israel in the Gaza Strip, the EU institutions may incur responsibility for their failure to act.
The Front Polisario judgments of 2016 and 2024 confirm that the action of the EU must conform with international humanitarian law. By analogy, the failure to act before manifest violations of international humanitarian law constitutes a breach of positive obligations. The scale of casualties and destruction in the Gaza Strip made by the Israeli armed forces – 71,000 persons killed (among them more than 20,000 children and 10,000 women), at least 171,000 wounded, extensive civilian destruction rising to 85 per cent of its infrastructuresFootnote 37 – arguably increases the intensity of this obligation. The EU institutions, which refused to specifically and publicly acknowledge the risk of genocide in the Gaza Strip, have not adopted any preventive or punitive measures in their relations with Israel. Despite their ability to influence Israel, given the ties – particularly of economic natureFootnote 38 – between the EU and Israel,Footnote 39 the EU institutions have not used their capacity of influence on Israel to prevent genocide.
The observation is the same regarding the lack of willingness of the EU institutions to ensure that Israel complies with international humanitarian law. This refusal to name and act created a normative contradiction that is difficult to justify. In such a situation, international law transforms the prevention of serious violations of international law into a legal obligation, not a political option.
C. Legal silence and inaction as failure: justiciability of institutional failure to act
The tension between law and politics becomes decisive when a positive obligation arises. The CJEU has recognised a broad margin of discretion to the EU institutions in foreign policy matters, but this margin disappears or is substantially reduced when a jus cogens norm is at stake.
In Bosnia and Herzegovina v Serbia, the ICJ held that violation of the obligation to prevent genocide may arise from simple omission where reasonably expected measures were not taken.Footnote 40
Applied to the EU, once institutions have knowledge of a serious risk, mere inaction may constitute a breach. This is the argument advanced by JURDI: where jus cogens applies, political discretion is reduced and limited; recognition of a genocidal risk and the ascertained commission of crimes against humanity transform the possibility of acting into a legal obligation,Footnote 41 particularly when the alleged perpetrator of these crimes is a state with which the EU is associated and over which it has significant influence.
Institutional silence and inaction, therefore, become justiciable under Article 265 TFEU. In this context, the role of the EU courts is not to impose a choice of foreign policy, but to ascertain a legal violation: where a peremptory norm requires action, abstention itself becomes justiciable.
4. The JURDI case: a civil society organisation as a constitutional actor
A. The JURDI case as a test of the EU procedural system
The action brought by JURDI marks a conceptual turning point in EU litigation. JURDI argues that institutional silence and inaction breach not only political expectations but also legal obligations deriving from jus cogens and from EU foundational values (human dignity, freedom, democracy, equality, rule of law and human rights, as mentioned by Article 2 TEU). The action targeted the Commission and the Council for failing to suspend or reassess cooperation with Israel despite the ICJ findings of a plausible risk of genocideFootnote 42 and the ICC arrest warrants.
For the first time, a civil society organisation invoked Article 265 TFEU based not on an individual interest but on an objective obligation of the EU to act.Footnote 43 In JURDI’s view, failure to act is not a political non-act, but a legally sanctionable omission, insofar as it reflects a breach of a duty to act imposed by jus cogens and by Articles 2, 3 and 21 TEU.Footnote 44
This association advanced a substantive argument: when a peremptory norm requires action, procedural rules cannot prevent judicial review.Footnote 45 Ubi jus cogens, ibi remedium. Footnote 46
The judicial action thus seeks to fill the procedural gap arising from the case law interpreting Article 265 TFEU through a substantive argument based on the superiority of peremptory international obligations over internal procedural limitations.
In this sense, the JURDI case does not fall within activist litigation, but within litigation aimed at legal coherence: it questions the compatibility between the EU’s commitments regarding the prevention of international crimes and the silence of its institutions before their explicit recognition and their failure to act and adopt measures.
By declaring itself committed to the principle of prevention of genocide and to respect for international humanitarian law, while at the same time refraining from acknowledging the risk of genocide in the Gaza Strip and from acting as required towards Israel, the EU exposes itself to a major legal contradiction.
The purpose of the action is precisely to have this inconsistency recognised in light of the principles of legality and coherence set out in Article 21 TEU.Footnote 47 Thus, through litigation, JURDI did not assert its own interest but asserted the justiciability of legality itself. The association acted as the voice of the principle of legality, transposing the logic of the role of civil society in fundamental rights protection to the field of EU external policy. It thereby reaffirmed the constitutional function of the action for failure to act: preventing legality from being suspended by silence.
B. A test case: giving effect to the EU founding principles
The JURDI case constitutes a true borderline scenario, a stress test for the EU’s system of judicial remedies. It confronted the General Court to choose between:
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1. giving effect to founding principles by recognising limits to institutional discretion, and
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2. preserving procedural immunity for omissions even where international law mandates action.
The order of the General Court of 5 September 2025 declared the action inadmissible, on the grounds that a ‘clear public position’ on the risk of genocide is not a reviewable act under Article 265 TFEU and that the Court has no power to issue an injunction to the EU institutions to act.Footnote 48 This formalistic reading makes the action for failure to act devoid of its substance precisely in the situations (such as the violation of a peremptory norm of international law) where it should serve as the ultimate safeguard of legality.
Such an interpretation raises a normative tension: how can a legal order founded on the primacy of the law consider that a breach of a jus cogens obligation escapes any judicial review?Footnote 49 By dismissing the admissibility of an action based on the most compelling norms of international law, the General Court implicitly accepted that institutional inaction may remain legally unpunished insofar as it is shielded by the label of ‘political abstention’. This approach departs from the systemic dynamic established since Les Verts and reaffirmed in Inuit Tapiriit Kanatami, and creates a discontinuity in the tenet that the EU law system contains a complete system of legal remedies.
The JURDI case thus reveals a deep tension between the normative universality of EU law and the procedural discretion of its institutions. It compels the CJEU to clarify whether the European rule of law stops where foreign policy begins, or whether legality retains its full scope even in the most sensitive domains. In other words, the CJEU must choose between the normative coherence of its system of remedies and the preservation of its traditional procedural discretion.
In this sense, the action for failure to act brought by JURDI became a test for the effectiveness of the principle of legality: is the CJEU prepared to recognise that a peremptory norm of international law can, by itself, constrain the political discretion of the institutions? The answer to this question on appeal will determine whether Article 265 TFEU retains an ‘effet utile’ or whether it remains a symbolic or marginal instrument, incapable of preventing the most serious legal breaches for failure to act of the EU institutions.
C. Systemic implications: towards constitutionalising institutional responsibility
Beyond its contentious dimension, the JURDI case sketches a redefinition of institutional responsibility within the EU. By mobilising the action for failure to act, the association reinterprets Article 265 TFEU as a tool of constitutional accountability. The aim is to assess the conformity of institutional silence and inaction with the EU’s fundamental values.
This shift in litigation – from formal control to substantive coherence – corresponds with an evolution already visible in recent case law, in cases such as ClientEarth and Medel, that could lead to a future acknowledgment given to civil society actors of an interest to bring proceedings in the defence of the constitutional values set out in Article 2 TEU.
But the JURDI case pushes this logic to its limits: the association asserts the possibility of a civil society organisation acting as guarantor of legality where the institutions fail to fulfil their own duties in this regard. Litigation thus becomes a functional extension of the principle of legality, no longer reserved to the institutions but shared with citizens and collective actors, especially when general principles of law are at stake. From this perspective, the JURDI case highlights the rise of a civic constitutionalism:Footnote 50 a movement through which non-institutional actors defend the constitutional coherence of the EU.
This evolution continues the dynamic initiated by Les Verts,Footnote 51 which already recognised the Court of Justice as guardian of the constitutional pact between the EU institutions and citizens. Today, this function extends to the scrutiny of silence and inaction: civil society, through litigation, becomes the guardian of the duty to act. The action for failure to act, long perceived as marginal, thus acquires structural significance: it becomes the procedural guarantee of institutional responsibility in the face of positive obligations. The justiciability of failure to act – particularly in the field of international humanitarian law – therefore emerges as the logical extension of the rule-of-law principle.
D. Assessment: the JURDI case as a mirror of EU constitutionalism
The JURDI case acts as a mirror of European contradictions. It reflects the tension between the universal principles the EU proclaims and the procedural limits it imposes on itself. The question before the Court is not merely one of admissibility: it concerns the credibility of the principle of legality in the EU.
By refusing to examine an omission to comply with jus cogens obligations, the system of remedies risks creating a zone of legal irresponsibility. Conversely, by agreeing to hear the matter, the CJEU could affirm that legality does not stop at the boundaries of procedural rules,Footnote 52 but extends to an institutional failure to act when such inaction violates fundamental norms of international law.
Whatever the outcome of the appeal, the JURDI case has already produced a constitutional effect: it has opened a space for reflection on the justiciability of the duty to act. It demonstrates that civil society can, through law, compel the EU to confront the silent dimension of its legality. It forces the CJEU to rule not only on an abstention, but also on its own capacity to embody the rule-of-law principle in a world where peremptory norms of international law become a test of internal coherence.
The action brought by JURDI is therefore not a procedural anomaly, but a symptom: that of a legal order seeking a balance between the institutional autonomy of the EU and the respect for mandatory international norms.Footnote 53 It poses to the CJEU an existential question: can the EU still call itself a ‘community based on the rule of law’Footnote 54 if its institutions remain legally unaccountable for their silence and lack of initiative in the face of violations of the most imperative norms of international law?
5. Conclusion: towards a constitutionalisation of the duty to act
The trajectory traced in this article reveals an unexpected evolution within EU law: a long-neglected procedural mechanism – the action for failure to act under Article 265 TFEU – has regained constitutional relevance in the face of contemporary international crises.
Initially designed to fill the gaps in judicial review, it has remained marginal, confined within the formalism of locus standi. Recent developments in international law and the mobilisation of civil society have revived its deeper meaning, ensuring that EU legality also applies to institutional silence and failure to act. Article 265 TFEU embodies a structural principle of institutional responsibility: no EU institution may escape judicial review when it abstains from acting where the law requires action.
Yet procedural practice has curtailed its scope, reserving it in practice for interinstitutional disputes. Recent case-law – oscillating between openness (ClientEarth, Medel) and retrenchment (ST v Frontex) – confirms this ambivalence and reveals a persistent gap in the completeness of the EU judicial system.
The obligation to prevent genocide and the obligation to ‘respect and ensure respect’ for international humanitarian law – interpreted by the ICJ as a jus cogens duty – restricts institutional political discretion and transforms the possibility of acting into a legal requirement. The JURDI case represents a turning point: the first attempt by civil society to constitutionalise a duty to act by invoking peremptory norms as limits on institutional inaction.
The justiciability of institutional omission could thus become the sign of an EU that fully assumes its dual identity: as a community of law and a community of responsibility. The pending appeal in JURDI will test whether the CJEU embraces this constitutional mutation or entrenches procedural formalism.
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