European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

In application of the principle of cooperation laid down in Article 4 TEU, it is for national courts to ensure the legal protection which individuals derive from the direct effect of provisions of European law . In order to guarantee the efficiency of European law, the right to interim relief authorizes the court to suspend the application of a contrary national provision pending a decision of the …

Right to interim relief

In application of the principle of cooperation laid down in Article 4 TEU, it is for national courts to ensure the legal protection which individuals derive from the direct effect of provisions of European law . In order to guarantee the efficiency of European law, the right to interim relief authorizes the court to suspend the application of a contrary national provision pending a decision of the European Court of Justice. Rules as to substance and procedure differ depending on whether the dispute concerns the compatibility of a domestic rule with European law or the European measure on the basis of which it has been adopted.

1) Compatibility of a domestic rule with European law

The national court which refers a matter to the Court of Justice for a preliminary ruling, but whose domestic rules do not allow or impose suspension of the enforcement of the measure subject to assessment by the European court, must, following the Simmenthal case , disapply those rules in order to give full effect to European law . However, it is for the domestic legal system of each Member State in the absence of European rules governing the matter, to determine the conditions under which interim relief is to be granted . 

2) Compatibility of the European measure on the basis of which the national rule has been adopted

Where the administrative implementation of European rules reverts to national authorities, the judicial protection which European law ensures includes the right for nationals to contest, as a preliminary matter, the legality of those rules before the national court to induce it to refer the matter to the Court of Justice for preliminary ruling. That right would be compromised if, pending delivery of a judgment of the ECJ, the individual were not in a position, where the relevant conditions are satisfied, to obtain a decision granting suspension of enforcement . In effect, the interim legal protection ensured for individuals before national courts must be the same, irrespective of whether they contest the compatibility of national legal provisions with European law or the validity of secondary European law, where, in both cases, the dispute is based on European law itself . The national court may not only suspend the enforcement of the national rule applying a European regulation whose legality is challenged, but also grant interim measures settling or regulating the disputed legal positions or relationships . Only national courts, and not administrative authorities, may order suspension of enforcement of an administrative measure based on a European act, the legality of which is contested . Thus, in matters relating to customs, suspension of implementation may be ordered by the national courts, even if the Community Customs Code confers that possibility only on the customs authorities . 

In order to ensure uniform application of European law, the suspension of enforcement, while governed by national procedural rules as regards the making and examination of the application, must be subject to uniform conditions of granting in all Member States similar to those of interim relief before the ECJ . Before ruling on interim measures, the national court is required to ensure that several conditions are met. Interim measures must be urgent, i.e. necessary to avoid serious and irreparable damage to the party seeking them . There must be serious doubts as to the validity of the European act: the court must state the reasons for which it considers that this act might be invalidated by the European court. The Court of Justice must not already be dealing with a referral concerning the validity of that act . Lastly, the national court must take account of the Union interest, particularly by giving the European institution which has adopted the act an opportunity to express its views . 

By contrast, the right to interim protection cannot be claimed in case of failure to act by a European institution. In effect, the Treaty makes no provision for a reference for a preliminary ruling by which a national court asks the Court of Justice to rule that an institution has failed to act. Thus, national courts have no jurisdiction to order interim measures pending action on the part of the institution .

Case C-213/89 The Queen v Secretary of State for Transport, ex parte Factortame [1990] ECR I-2433, LawLex200900002049JBJ.

Case 106/77, Amministrazione delle finanze dello Stato v Simmenthal [1978] ECR 629, LawLex200700001337JBJ.

The damage relied on by the applicant must be such as to materialize before the Court of Justice has been able to rule on the validity of the contested EU act: Case C-465/93 Atlanta Fruchthandelsgesellschaft and others (I) v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761, LawLex200900000957JBJ; C-334/95 Krüger v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517, LawLex200900000344JBJ.

An EU act which has already been subject to an action for annulment, or a reference for a preliminary ruling on validity, which gave rise to a dismissal by the Court of Justice or the General Court, judgment which has become final and binding, may no longer be subject to suspension of enforcement or reference for preliminary ruling, unless the grounds of illegality or annulment put forward before it differ: Case C-465/93 Atlanta Fruchthandelsgesellschaft and others (I) v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761, LawLex200900000957JBJ; Case C-334/95 Krüger v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517, LawLex200900000344JBJ.

Case C-465/93 Atlanta Fruchthandelsgesellschaft and others (I) v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761, LawLex200900000957JBJ; Case C-334/95 Krüger v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517, LawLex200900000344JBJ.

Case C-68/95 T. Port v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-6065, LawLex200900001094JBJ.

Case C-432/05 Unibet [2007] ECR I-2271, LawLex200900000787JBJ: subject to compliance with the principles of equivalence and effectiveness.

Case C-143/88 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest v Hauptzollamt Itzehoe and Hauptzollamt Paderborn [1991] ECR I-415, LawLex200900000552JBJ.

Case C-465/93 Atlanta Fruchthandelsgesellschaft and others (I) v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761, LawLex200900000957JBJ.

Case C-143/88 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest v Hauptzollamt Itzehoe and Hauptzollamt Paderborn [1991] ECR I-415, LawLex200900000552JBJ; Case C-465/93 Atlanta Fruchthandelsgesellschaft and others (I) v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761, LawLex200900000957JBJ.

Case C-453/03 ABNA and others [2005] ECR I-10423, LawLex200900000360JBJ.

Case C-226/99 Siples [2001] ECR I-277, LawLex200900001295JBJ.

European Business Law

169. Right to interim relief

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169. Right to interim relief

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise