2. Obligations to act and procedural limits under Article 265 TFEU

At the heart of any action for failure to act under Article 265 TFEU lies the requirement that the defendant institution was under a positive legal obligation to act. While apparently straightforward, this condition has proven to be one of the most elusive and structurally restrictive elements of the remedy. The Court’s case-law has oscillated between treating the existence of such an obligation as a matter of admissibility and relegating it to the merits of the action, thereby blurring the procedural boundaries governing access to judicial review.Footnote ¹⁰

The Court’s task, in this setting, is not merely to interpret substantive obligations, but to calibrate the procedural conditions under which alleged failures to comply with those obligations may be judicially examined. Early jurisprudence suggested a relatively clear separation between admissibility and substance. In Buckl v Commission, the Court held that the assessment of whether the institution was legally required to act pertained to the merits rather than to admissibility.Footnote ¹¹ Yet, subsequent case-law progressively eroded this distinction. In interinstitutional disputes such as Parliament v Commission, the Court required applicants to demonstrate, already at the admissibility stage, the existence of at least a prima facie obligation to act.Footnote ¹² This hybrid approach effectively raised the threshold for access to the Court by importing substantive considerations into the preliminary procedural filter. From a structural perspective, this move transformed the obligation-to-act requirement into an instrument of procedural governance rather than it being a neutral jurisdictional criterion.Footnote ¹³

Regardless of how this doctrinal ambiguity is resolved, the practical consequence remains constant: the burden rests squarely on the applicant to demonstrate that the alleged omission constitutes a breach of the Treaties, rather than a lawful exercise of institutional discretion. This burden is especially onerous in areas characterised by complex political judgement, such as the Union’s external relations, where the Commission, the High Representative and the Council enjoy a particularly wide margin of discretion.Footnote ¹⁴ Even though the Court is not tasked with replacing institutions in making specific policies, Article 265 TFEU could still serve as a mechanism for procedural accountability.

This discretion is not merely incidental; it is structurally embedded in the Treaties. Under Article 17(1) TEU, the Commission is entrusted with ensuring the application of the Treaties and of agreements concluded under them, including the monitoring of compliance by third states with their obligations under international agreements concluded with the Union. Yet, this monitoring function does not translate into a duty to adopt specific measures in response to a breach. Under Article 218(9) TFEU, the power to suspend or otherwise modify an international agreement rests with the Council, acting on a proposal from the Commission or the High Representative. Even where a violation of an ‘essential elements’ clause – such as the human rights clause contained in Article 2 of the EU–Israel Association Agreement – is established, the institutions retain discretion as to whether, when and how to respond.Footnote ¹⁵ This framing exposes a fundamental tension in Article 265 TFEU: discretion is not absolute, but rather structurally and legally constrained.

From a governance perspective, the significance of this case law lies in the way discretion is treated as a categorical shield against judicial review rather than as a parameter subject to legal constraint. The Court has repeatedly held that the mere existence of a legal framework enabling the adoption of restrictive measures does not generate an obligation to act. Sanctions, countermeasures and restrictive measures adopted under Article 215 TFEU or within the framework of Article 21 TEU remain instruments of political choice, even when invoked in response to serious violations of international law.Footnote ¹⁶ As a result, individuals and associations cannot require the Commission to adopt a particular position, let alone to propose suspending an international agreement. What is excluded, in doctrinal terms, is not only the possibility of compelling a specific outcome, but the very justiciability of alleged inertia in the exercise of external relations discretion.Footnote ¹⁷

The difficulty of surmounting this threshold is compounded by the Court’s narrow understanding of what constitutes an actionable ‘omission’. Article 265 TFEU does not define the concept of inaction, leaving considerable interpretative leeway. Rather than construing inaction as the failure to fulfil a positive legal obligation, the Court has often equated it with the absence of any formal position. Under this jurisprudential approach, once an institution has expressed a view – regardless of its substance, timing or legal effects – the action for failure to act is rendered inadmissible.Footnote ¹⁸

This reasoning has been consistently applied in cases such as Buckl, where even a refusal to act was sufficient to defeat the action,Footnote ¹⁹ and Benelux II, where a letter outlining general considerations was treated as a ‘defined position’.Footnote ²⁰ Conceptually, this interpretation transforms Article 265 TFEU from a remedy against substantive inertia into a safeguard of institutional autonomy. The definition of inaction thus performs a decisive gatekeeping function, governing access to judicial review by privileging formal responsiveness over legal effectiveness.

The underlying logic is that Article 265 TFEU is not designed to review the adequacy, effectiveness or appropriateness of institutional conduct, but merely to sanction absolute silence.Footnote ²¹ What is judicially constructed as ‘action’ may therefore amount, from a substantive perspective, to structured non-decision-making. This point was explicitly acknowledged by the Court of Justice in 2023, when it cautioned against interpretations that would allow institutions to persist in inertia while formally avoiding review.Footnote ²² Then, the Court adopted a more functional approach, focusing not on the formal classification of the act but on the consequences of excluding judicial review. It held that a purely tokenistic response, designed solely to evade litigation, could not be regarded as genuinely interrupting inaction.Footnote ²³ The selective nature of this functional turn is revealing. While the Court recognised the risk of hollowing out Article 265 TFEU in interinstitutional disputes, it has not extended this reasoning to actions brought by private applicants. It recognised that the effectiveness of Article 265 TFEU depends on its capacity to capture substantive inertia rather than formalistic compliance. The appeal lodged against the JURDI order may provide the Court of Justice with an opportunity to clarify the extent to which Article 265 TFEU tolerates merely formal institutional responses.Footnote ²⁴ By maintaining a narrow conception of inaction in private actions, the Court preserved the insulation of politically sensitive decisions from judicial scrutiny, thereby limiting the role of Article 265 TFEU as an effective accountability mechanism – regardless of the fact that the claims are not based on the applicants’ own views of the EU’s obligations under international law, but rather are grounded in authoritative determinations,Footnote ²⁵ ICC arrest warrants against Netanyahu and Gallant for war crimes and crimes against humanityFootnote ²⁶ and reports from independent international commissions of inquiry.Footnote ²⁷ In this context, the EU’s inaction might constitute not merely a breach of EU law, but also a violation of international ius cogens, framing the exercise of discretion under Article 265 TFEU within the binding constraints imposed by erga omnes obligations.Footnote ²⁸

This framing exposes a fundamental tension in Article 265 TFEU: discretion is not absolute, but rather structurally and legally constrained. Even within the broad political margins afforded by Articles 17(1) TEU, 218(9) TFEU or Article 21 TEU, the EU institutions remain bound to respect international law obligations and the institutional choice to remain inactive is not neutral, but instead represents a procedural and normative lapse with tangible consequences.

Here, Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), codifying a customary rule, might offer a crucial operational insight. Traditionally, an interpretive canon, it requires that treaty provisions be read ‘taking into account’ the relevant rules of international law applicable in the relations between the parties. Transposed to the EU context, it can be conceptualised as a procedural duty incumbent on all the institutions, and especially on the Court of Justice as the sole body competent to review the legality of the Union’s external action, ensuring its effective contribution to the rigorous observance of international law. Accordingly, when exercising discretion, they must systematically identify relevant international obligations and must actively consider credible findings from international authorities and integrate them into a structured, reasoned assessment that guides policy decisions. This procedural duty does not prescribe a particular substantive measure – it does not mandate suspending an agreement or imposing sanctions – but it requires a genuine and demonstrable process of evaluation and legal reasoning.

This perspective shifts the analytical focus from the question of which specific policy should have been adopted to whether the institution engaged meaningfully with its obligations under international law, particularly erga omnes obligations. Discretion under Article 265 TFEU is thus normatively bounded: an institution cannot invoke political latitude to justify inaction where international law imposes a duty of due diligence to prevent genocide or other serious violations. In other words, discretion carries an embedded procedural responsibility to act in a manner consistent with credible international obligations. Importantly, framing Article 31(3)(c) VCLT as a procedural onus transforms the analysis of Article 265 TFEU. Rather than serving merely as an interpretive aid, the provision becomes a structuring principle for procedural legality: institutions must demonstrate that discretion was exercised in a manner consistent with the Union’s international law obligations. Failure to engage substantively with credible evidence of serious violations may constitute both a procedural omission actionable under Article 265 TFEU and a breach of international law, bridging the gap between EU procedural doctrine and the Union’s external responsibilities. This reconceptualisation might properly and functionally address the structural asymmetry highlighted by the JURDI order. By reframing the obligation to act as a procedural duty anchored in international law, the Court could ensure that discretion does not become a shield for inaction in circumstances involving erga omnes obligations. The procedural focus preserves institutional autonomy while enforcing minimum standards of engagement and due diligence, enabling accountability without transforming the Court into a foreign policy decision-maker. Operationalising this approach also alleviates the misalignment between the nature of erga omnes obligations and the restrictive standing doctrines under Article 265(3) TFEU. Associations and civil society actors, whose claims are inherently collective and preventive, can frame challenges around institutional failure to discharge procedural duties rather than individualised legal harm. This procedural focus makes actionable omissions visible within the existing remedial framework while respecting the formal structure of standing requirements. It provides a practical avenue for accountability where the classical individualised conception of legal interest fails to capture collective preventive obligations. In this sense, procedural duties act as a corrective mechanism, ensuring coherence between the Union’s internal legal order and its international commitments. In this framework, inaction is not assessed solely on the basis of whether a specific measure was preordained by the Treaties, but on whether institutions adequately engaged with their legally binding international duties, ensuring that discretion is exercised within the boundaries of law and constitutional principle.

This reading also conceptually bridges the gap to the subsequent discussion on judicial containment. By situating formalistic limitations of Article 265 TFEU within a procedural and normative context, the analysis clarifies that the Court’s restrictive construction of omission is not a neutral technical choice, but a deliberate calibration of discretion and accountability.

3. Judicial containment as a mode of procedural governance: conceptual foundations

The restrictive procedural framework examined above illustrates not only technical limitations but a deliberate pattern in judicial reasoning. This pattern can be conceptualised as judicial containment, a mode of governance in which formal remedies exist but their substantive effect is systematically constrained.

The concept of judicial containment provides the analytical framework through which this article interprets the operation of Article 265 TFEU in the JURDI order. Judicial containment designates a mode of procedural governance in which judicial review is formally preserved yet functionally constrained through the cumulative operation of admissibility requirements, restrictive constructions of actionable conduct and expansive deference to institutional discretion. It is proposed here not as a rhetorical label, but as a transferable category of constitutional analysis capable of capturing a recurring pattern in the Court’s approach to normatively ambitious claims in politically sensitive domains.

Judicial containment must be distinguished both from classical accounts of judicial restraint and from doctrines of non-justiciability. Unlike restraint, which is typically framed as a conscious choice to defer to political branches on substantive grounds, containment operates indirectly. It uses procedural doctrines that fragment access to review without explicitly disclaiming judicial competence. Unlike the political question doctrine, it does not exclude entire categories of disputes from judicial scrutiny; rather, it preserves review in principle while neutralising its capacity to generate disruptive legal effects in practice. The effect is not the absence of judicial control, but its systematic attenuation through the alignment of procedural reasoning with the preservation of institutional autonomy.

In the context of EU law, judicial containment emerges at the intersection of constitutional ambition and institutional balance. The Treaties articulate far-reaching normative commitments – most notably in Articles 2 and 21 TEU – yet entrust their realisation in external action to institutions endowed with broad discretion. The Court’s task, in this setting, is not merely to interpret substantive obligations, but to calibrate the procedural conditions under which alleged failures to comply with those obligations may be judicially examined. Judicial containment captures the outcome of this calibration: a configuration in which the formal availability of judicial remedies coexists with doctrinal barriers that limit their practical reach.

With respect to Article 265 TFEU, judicial containment is manifested through a constellation of recurring features. These include an insistence on identifying a specific and unconditional legal obligation to act; a narrow and formalistic understanding of what constitutes actionable inaction; the treatment of institutional discretion as a categorical shield rather than as a legally bounded parameter; and the rigid application of standing requirements premised on individualised legal effects. Each of these elements is doctrinally defensible when considered in isolation. Taken together, however, they transform the action for failure to act into a mechanism that safeguards institutional continuity while restricting avenues for bottom-up accountability.

Conceptualising these dynamics under the rubric of judicial containment allows Article 265 TFEU to be situated within the broader constitutional economy of EU remedies. Rather than functioning primarily as an instrument for enforcing compliance with fundamental values, the action for failure to act operates as a site where the Court actively delineates the boundary between law and politics in the Union’s external action. The JURDI order should therefore be read not merely as an application of settled admissibility criteria, but as an illustration of judicial containment in operation.

4. Standing and collective interests under Article 265 TFEU

The narrow standing doctrine reinforces judicial containment: even where obligations of universal relevance exist, private actors cannot compel institutional engagement. The admissibility of actions for failure to act brought by private applicants is subject to particularly restrictive standing requirements under Article 265(3) TFEU. Unlike privileged applicants, private parties must demonstrate that the act allegedly omitted was addressed to them or, alternatively, that it would have concerned them directly and individually in a manner analogous to that of its addressee. This requirement has been interpreted by the Court in a manner that substantially narrows access to judicial review, especially for associations and civil society organisations seeking to challenge institutional inertia in the public interest.Footnote ²⁹

At the outset, the applicant must establish a legal interest in bringing proceedings, defined as the concrete possibility that a favourable judgment would confer a personal benefit.Footnote ³⁰ This condition is closely intertwined with the requirements of direct and individual concern, which together operate as a powerful gatekeeping mechanism. Although linguistic variations between the different language versions of Article 265(3) TFEU might suggest a degree of flexibility regarding whether the act sought must be addressed to the applicant itself, the Court’s case-law has imposed stringent substantive limits. A private applicant may seek the adoption of an individual decision addressed to a third party only where it is directly and individually concerned by that decision.Footnote ³¹ In the field of external relations, this standard is rarely met, given the diffuse, collective and mediated nature of the legal effects typically produced by acts – or omissions – of the Union.Footnote ³²

The standing of associations has been recognised only in three narrow circumscribed scenarios:Footnote ³³ where a legislative provision expressly confers procedural rights on professional associations; where the association represents the interests of undertakings that themselves would have standing to act; and where the association is individually affected because its own interests as an association are impaired, notably where its role as a negotiator is affected by the contested act.Footnote ³⁴ Outside these scenarios, associations are systematically denied standing.Footnote ³⁵

In the JURDI order, the General Court held that none of the measures that were alleged to have failed to be adopted – ranging from the suspension of the EU–Israel Association Agreement to the adoption of sanctions – would directly have affected the legal situation of the applicant association by altering its rights or obligations.Footnote ³⁶ The association’s statutory mission, centred on the prevention of international crimes and the mobilisation of international law, was deemed insufficient to establish direct concern. Any impact on the effectiveness of its activities was characterised as factual rather than legal in nature.Footnote ³⁷ This reasoning reveals a structural incompatibility between the standing doctrine governing Article 265 TFEU and the nature of the obligations invoked in cases such as JURDI. Preventive duties and erga omnes obligations are, by definition, oriented towards the protection of collective interests and diffuse beneficiaries. They do not presuppose an individualised rights-holder whose legal position can directly and specifically be affected by a discrete act. Yet the admissibility framework applied by the Court remains anchored in a model of individual legal harm that renders such claims procedurally invisible.

The requirement of individual concern further entrenches this misalignment. An association established to defend collective interests cannot be regarded as individually concerned by an act affecting those interests unless it is distinguished, in legally relevant terms, from all other actors pursuing comparable objectives.Footnote ³⁸. In JURDI, the applicant failed to demonstrate how its role differed from that of other associations operating in the same field across the Union. The standing doctrine thus presupposes an individualisation that is structurally absent in contexts involving collective and preventive obligations.Footnote ³⁹

Attempts to relax these requirements through a teleological interpretation grounded in the fundamental right to effective judicial protection have consistently been rejected. While Article 263(4) TFEU must be interpreted in light of that right, it has also held that such interpretation cannot result in setting aside the conditions expressly laid down by the Treaties.Footnote ⁴⁰ As a result, claims grounded in the defence of fundamental values or erga omnes obligations largely remain excluded from judicial consideration, not because they fall outside the scope of EU law, but because they cannot be accommodated within the individualised logic of standing that governs access to the Court under Article 265 TFEU.

The distinction between legal and political acts operates as an additional decisive filter in the reasoning of the General Court excluding from judicial review any omission that does not translate into a formally binding instrument,Footnote ⁴¹ revealing a broader reluctance to allow this procedural avenue to function as a vehicle for substantive accountability where politically sensitive choices are at stake.Footnote ⁴² Judicial restraint, in this sense, functions as a mechanism of institutional self-preservation.Footnote ⁴³

The role of the European Ombudsman in the JURDI context further sharpens the contours of this accountability gap. Its inquiry on GazaFootnote ⁴⁴ focused primarily on whether the institutions had taken steps within the limits of their competences, rather than on the adequacy or sufficiency of those steps in light of the alleged risks and the substantive obligations invoked. This orientation reflects the inherently administrative nature of the Ombudsman’s mandate, which is structurally ill-equipped to engage with questions of substantive compliance with international humanitarian law, human rights law or preventive obligations under international law. While the Ombudsman may identify instances of maladministration, it cannot articulate or enforce standards of action capable of constraining political discretion in a manner comparable to judicial review. Nor can it assess whether institutional discretion has been exercised consistently with the Union’s constitutional commitments under Articles 2 and 21 TEU. The JURDI proceedings thus reveal a fragmented accountability landscape in which neither judicial nor non-judicial mechanisms provide a forum for engaging with the substantive dimension of alleged institutional failures. Rather than compensating for the limits of Article 265 TFEU, the Ombudsman’s intervention underscores the absence of any institutional pathway through which claims grounded in fundamental values and international obligations may meaningfully be examined.Footnote ⁴⁵