Kuwait Court of Cassation principle number 418

Summary: - A negative administrative decision that may be challenged by an annulment action. Condition for its existence: the administrative authority must refrain from taking a measure that it was required to take under the laws and regulations. Absence of an obligation upon it to take that measure. Necessary consequence. Its refraining does not constitute a negative decision amenable to challenge by an annulment action. - Ascertaining whether a negative administrative decision exists or is absent. Within the competence of the court of merits. Condition therefor. Rule: It is established in the jurisprudence of this Court that the court of merits has the authority to characterize the litigants’ claims in the action and is not bound by their description thereof, and that a negative decision that may be challenged by an annulment action exists only where it is established that the administrative authority refrained or failed to take a measure that it was required to take pursuant to the laws and regulations, in that the person concerned satisfied the conditions and requirements prescribed by law for obtaining a particular right. If such a measure was not obligatory for it, its refraining from taking it does not constitute a negative decision amenable to challenge by annulment. The court of merits may ascertain from the facts of the dispute whether such a decision exists or is absent, provided that it bases its judgment on cogent reasons.