INTERIMMEASURES IN EC LAW: Towards a Complete and autonomous System of Provisional Judicial Protection before National Courts? Sergio Ariel Apter Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or othenwise, except for reasonable quoting, clearly indicating th source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract Two situations can be distinguished in the case law of the european Court of Justice on interim relief granted by national judges: (ia Factortame-type situation(after the name of provisions incompatible with Community law, and (i)a Z.A.P. -type situation( after the Sal the case known as Factortame ) concerning the suspension of enforcement of national leg initials of Zuckerfabrik, Atlanta and Port), dealing with the suspension of enforcement of national measures implementing Community Regulations and positive interim orders disapplying such regulations Factortame ratifies the idea that compliance with the principle of effective jud icial protection of Community law rights requires immediate availability of a remedy, pending the determination of the substance of a case. Factortame recognizes a community law right te interim legal protection, regardless of the authority against which the relief is granted and the means through which such protection is provided. Z.A. P provide the foundations of a Community law right to interim legal protection where the valid ity of Community regulations is challenged In Factortame, national courts? jurisdiction to grant interim measures is based d irectly on Community law. The same applies to a Z.A. P -type situation where the validity of a Community act is in issue So far as the exercise of the power to grant interim measures is concerned, under a Factortame-type situation, national courts apply domestic law requirements and cond itions Under a Z.A. P.-type situation, minimum uniform Community law cond itions(such as the existence of serious doubts as to the valid ity of the Community measure, the urgency and threat of serious and irreparable damage, and the consideration of the interest of the Community) are applicable There is not a truly complete Community law system of provisional judicial protection before national courts. However, the gaps left by the Court's case law allow the anticipation of further developments Contents 1. Introduction 2. The right to obtain interim relief before national courts 2. 1 Direct, immediate and effective judicial protection 2. 2 Rationale behind the case law of the European Court of Justice 2.2. 1 Factortame-type situation
INTERIM MEASURES IN EC LAW: Towards a Complete and Autonomous System of Provisional Judicial Protection before National Courts? Sergio Ariel Apter Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract Two situations can be distinguished in the case law of the European Court of Justice on interim relief granted by national judges: (i) a Factortame-type situation (after the name of the case known as Factortame), concerning the suspension of enforcement of national legal provisions incompatible with Community law, and (ii) a Z.A.P.-type situation (after the initials of Zuckerfabrik, Atlanta and Port), dealing with the suspension of enforcement of national measures implementing Community Regulations and positive interim orders disapplying such regulations. Factortame ratifies the idea that compliance with the principle of effective judicial protection of Community law rights requires immediate availability of a remedy, pending the determination of the substance of a case. Factortame recognizes a Community law right to interim legal protection, regardless of the authority against which the relief is granted and the means through which such protection is provided. Z.A.P. provide the foundations of a Community law right to interim legal protection where the validity of Community regulations is challenged. In Factortame, national courts? jurisdiction to grant interim measures is based directly on Community law. The same applies to a Z.A.P.-type situation where the validity of a Community act is in issue. So far as the exercise of the power to grant interim measures is concerned, under a Factortame-type situation, national courts apply domestic law requirements and conditions. Under a Z.A.P.-type situation, minimum uniform Community law conditions (such as the existence of serious doubts as to the validity of the Community measure, the urgency and threat of serious and irreparable damage, and the consideration of the interest of the Community) are applicable. There is not a truly complete Community law system of provisional judicial protection before national courts. However, the gaps left by the Court's case law allow the anticipation of further developments. Contents 1. Introduction 2. The right to obtain interim relief before national courts 2.1 Direct, immediate and effective judicial protection 2.2 Rationale behind the case law of the European Court of Justice 2.2.1 Factortame-type situation
2.2.2 Z.A. P.-type situation 2.2.3 Factortame and Z.A. P. Common features 3. The power of national courts to grant interim relief 3. I The jurisdiction to grant interim relief from a substantive perspective 3. 1.1 Factortame-type situation 3. 1. 2 Z.A. P.-type situation 3. 2 The jurisdiction to grant interim relief from a procedural 4. The exercise of the power to grant interim relief 4. 1 National procedural autonomy 4.2 Factortame-type situation 4.3 ZAP.-type situation 4.3. 1 The procedural conditions laid down by the Court of Justice 4.3. 1 I Serious doubts about the validity of the contested measure and statement of grounds(prima facie case or fumus boni juris) 4.3. 1 2 Reference to the Court of Justice of the question of validity 4.3.1.3 Urgency and threat of serious and irreparable damage(periculum in mora) 4.3.1.4 The interest of the Community to be taken into account 4.3.2 Why did the Court of Justice lay down uniform cond itions? 4.3.3 The Z.A.P. cond itions and national procedural autonomy 4.4 Factortame and Z.A. P. Differences and common features 5. Conclus Bibliography 1 Introduction The existence of judicial control mechanisms is one of the main features of any community based on the rule of law. In the framework of the EC Treaty, which is regarded as the constitutional charter of the European Community, national and Community acts are equally subject to such judicial control mechanisms. Under Article 226 of the Treaty, national law provisions deemed to be contrary to Community law may be challenged before the Court of Justice. On the other hand the valid ity of Community acts alleged to be incompatible with superior Community law may be contested under Article 230 of the Treaty. Furthermore, if Community institutions, in infringement of the Treaty, fail to act, an action may be brought against such institutions under Article 232 of the Treaty. In all cases, the enforcement of any act which is being challenged may be provisionally suspended and, as the case may be, any necessary interim measures can be ordered pursuant to Articles 242 and 243 of the Treaty until a judgment is rendered on its merits However, access to the remedies referred to above for natural persons and corporate bodies is certainly restricted. Individuals may not bring an action under Article 226 of the Treaty at all, and only in a limited number of cases they may begin annulment and failure to act proceedings under Articles 230 and 232 of the Treaty. In any event, taki that under Article 234 of the Treaty national judges may request a prelim in ing into account ary ruling by the European Court of Justice on the interpretation of Community law and on the valid ity of Hereinafter the treaty See Case 294/83, Les Verts v European Parliament, 1986 ECR 1339
2.2.2 Z.A.P.-type situation 2.2.3 Factortame and Z.A.P.: Common features 3. The power of national courts to grant interim relief 3.1 The jurisdiction to grant interim relief from a substantive perspective 3.1.1 Factortame-type situation 3.1.2 Z.A.P.-type situation 3.2 The jurisdiction to grant interim relief from a procedural perspective 4. The exercise of the power to grant interim relief 4.1 National procedural autonomy 4.2 Factortame-type situation 4.3 Z.A.P.-type situation 4.3.1 The procedural conditions laid down by the Court of Justice 4.3.1.1 Serious doubts about the validity of the contested measure and statement of grounds (prima facie case or fumus boni juris) 4.3.1.2 Reference to the Court of Justice of the question of validity 4.3.1.3 Urgency and threat of serious and irreparable damage (periculum in mora) 4.3.1.4 The interest of the Community to be taken into account 4.3.2 Why did the Court of Justice lay down uniform conditions? 4.3.3 The Z.A.P. conditions and national procedural autonomy 4.4 Factortame and Z.A.P.: Differences and common features 5. Conclusions Bibliography 1. Introduction The existence of judicial control mechanisms is one of the main features of any community based on the rule of law. In the framework of the EC Treaty,1 which is regarded as the constitutional charter of the European Community,2 national and Community acts are equally subject to such judicial control mechanisms. Under Article 226 of the Treaty, national law provisions deemed to be contrary to Community law may be challenged before the Court of Justice. On the other hand, the validity of Community acts alleged to be incompatible with superior Community law may be contested under Article 230 of the Treaty. Furthermore, if Community institutions, in infringement of the Treaty, fail to act, an action may be brought against such institutions under Article 232 of the Treaty. In all cases, the enforcement of any act which is being challenged may be provisionally suspended and, as the case may be, any necessary interim measures can be ordered pursuant to Articles 242 and 243 of the Treaty until a judgment is rendered on its merits. However, access to the remedies referred to above for natural persons and corporate bodies is certainly restricted. Individuals may not bring an action under Article 226 of the Treaty at all, and only in a limited number of cases they may begin annulment and failure to act proceedings under Articles 230 and 232 of the Treaty. In any event, taking into account that under Article 234 of the Treaty national judges may request a preliminary ruling by the European Court of Justice on the interpretation of Community law and on the validity of 1 Hereinafter the ‘Treaty’. 2 See Case 294/83, Les Verts v. European Parliament, 1986 ECR 1339
Community measures, natural persons and corporate bodies find sufficient possibilities of ind irectly challenging before domestic courts both the compatibility between national law provisions and Community law and the valid ity of Community acts implemented at the national level. Despite the absence of an express Treaty provision on the matter, the Court of Justice has indicated that national judges must be able to ensure provisional legal protection through interim measures until such time as a preliminary ruling is rendered The purpose of this article is to explore, in the light of the case law of the European Court of Justice, the domain of interim relief in EC law matters related disputes between individuals and Member States pending before national courts, with a view to inquire from a procedural law perspective whether it is possible to conceive a complete and autonomous Community law system of interim judicial protection before such courts Two different situations can be distinguished in the case law of the European Court of Justice on interim relief granted by national judges. The first one concerns the suspension of the enforcement of national legal provisions alleged to be incompatible with Community law, and will be called a Factortame3-type situation. The second one deals with the suspensionof enforcement of national measures implementing Community Regulations and positive interim orders disapplying such regulations in disputes where the applicants contest the alid ity of the latter. This will be designated as a Z A P 4-type situation A brief description of the facts, issues and outcomes of the cases covered by both types of situation is appropriate at this point, in order to set most clearly the object and focus fthe research In Factortame, the model case for the approach of the first type of situation, several persons engaged in fishing activities resulted affected by requirements as regards nationality residence and domicile, in the framework of a new system of registration of fishing vessels in the United Kingdom. The plaintiffs applied for judicial review of the Merchant Shipping Act 1988 establishing such a new registration system, claiming that the requirements contained it were incompatible with Community law. Simultaneously, they lodged applications for terlocutory injunctions, seeking suspension of the enforcement of the newly enacted provisions until a final decision was rendered on their main actions Although the Divisional Court hearing the case granted the interim relief sought by the applicants, the decision was quashed by the Court of Appeal. The case ultimately reached the House of Lords, which held that under English law, jud ges have no jurisdiction to grant interim relief against the Crown, and that on the basis of the presumption of valid ity of national legislation, such judges could not set aside an Act of Parliament so long as a finding that it is invalid has not been made. Nevertheless, the House of lords submitted a preliminary question to the European Court of Justice under Article 234 (ex Article 177)of the Treaty order to ascertain(i) whether Community law obliged or gave national courts the power to grant interim protection of Community law rights, and (ii) what criteria were to be applied in Case C-213/89,R v Secretary of State for Transport, ex parte Factortame (1990)ECRI-2433 hereinafter Factortame After the initials of Zuckerfabrik( Cases C-143/88 and C-92/89, Zuckerfabrik Suderdithmarschen v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v. Hauptzollamt Paderborn (1991)ECR 1-415), Atlanta ( Case C-465/93, Atlanta Fruchthandelsgesellschaft and Others v. Bundesamt fur Ernahrung und Forstwirtschaft ( 1995)ECR l-3761)and Port( Case C-68/95, T. Port gmbh Co KG v Bundesanstalt fur Landwirtschaft und Emahrung(1996)ECR l-6065, hereinafter Zuckerfabrik, Atlanta and Port, respectively Case C-334/95, Kruger gmbH Co KG v. Hauptzollamt Hamburg-Jonas(1997)ECR 1-4517, and Case C-17/98, Emesa Sugar(Free Zone )NV v. Aruba(2000)ECR I-675, regard issues dealt with similarly by the European Court of Justice
Community measures, natural persons and corporate bodies find sufficient possibilities of indirectly challenging before domestic courts both the compatibility between national law provisions and Community law and the validity of Community acts implemented at the national level. Despite the absence of an express Treaty provision on the matter, the Court of Justice has indicated that national judges must be able to ensure provisional legal protection through interim measures until such time as a preliminary ruling is rendered. The purpose of this article is to explore, in the light of the case law of the European Court of Justice, the domain of interim relief in EC law matters related disputes between individuals and Member States pending before national courts, with a view to inquire from a procedural law perspective whether it is possible to conceive a complete and autonomous Community law system of interim judicial protection before such courts. Two different situations can be distinguished in the case law of the European Court of Justice on interim relief granted by national judges. The first one concerns the suspension of the enforcement of national legal provisions alleged to be incompatible with Community law, and will be called a Factortame3 -type situation. The second one deals with the suspension of enforcement of national measures implementing Community Regulations and positive interim orders disapplying such regulations in disputes where the applicants contest the validity of the latter. This will be designated as a Z.A.P.4 -type situation.5 A brief description of the facts, issues and outcomes of the cases covered by both types of situation is appropriate at this point, in order to set most clearly the object and focus of the research. In Factortame, the model case for the approach of the first type of situation, several persons engaged in fishing activities resulted affected by requirements as regards nationality, residence and domicile, in the framework of a new system of registration of fishing vessels in the United Kingdom. The plaintiffs applied for judicial review of the Merchant Shipping Act 1988 establishing such a new registration system, claiming that the requirements contained in it were incompatible with Community law. Simultaneously, they lodged applications for interlocutory injunctions, seeking suspension of the enforcement of the newly enacted provisions until a final decision was rendered on their main actions. Although the Divisional Court hearing the case granted the interim relief sought by the applicants, the decision was quashed by the Court of Appeal. The case ultimately reached the House of Lords, which held that under English law, judges have no jurisdiction to grant interim relief against the Crown, and that on the basis of the presumption of validity of national legislation, such judges could not set aside an Act of Parliament so long as a finding that it is invalid has not been made. Nevertheless, the House of Lords submitted a preliminary question to the European Court of Justice under Article 234 (ex Article 177) of the Treaty, in order to ascertain (i) whether Community law obliged or gave national courts the power to grant interim protection of Community law rights, and (ii) what criteria were to be applied in 3 Case C-213/89, R. v. Secretary of State for Transport, ex parte Factortame (1990) ECR I-2433, hereinafter Factortame. 4 After the initials of Zuckerfabrik (Cases C-143/88 and C-92/89, Zuckerfabrik Süderdithmarschen v. Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v. Hauptzollamt Paderborn (1991) ECR I-415), Atlanta (Case C-465/93, Atlanta Fruchthandelsgesellschaft and Others v. Bundesamt für Ernährung und Forstwirtschaft (1995) ECR I-3761) and Port (Case C-68/95, T. Port GmbH & Co. KG v. Bundesanstalt für Landwirtschaft und Ernährung (1996) ECR I-6065), hereinafter Zuckerfabrik, Atlanta and Port, respectively. 5 Case C-334/95, Krüger GmbH & Co. KG v. Hauptzollamt Hamburg-Jonas (1997) ECR I-4517, and Case C-17/98, Emesa Sugar (Free Zone) NV v. Aruba (2000) ECR I-675, regard issues dealt with similarly by the European Court of Justice
decid ing whether or not to grant such interim protection Despite the specificity and clarity of the questions referred by the House of lords, the Court of Justice confined itself to answering that Community law must be interpreted as meaning that where a national court, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule. Upon delivery of the ruling, the House of lords awarded the interlocutory injunctions sought by the plaintiffs The first case dealt with under a Z.A. P -type situation was Zuckerfabrik. The applicants were sugar manufacturers who sought the suspension of a payment demand by German administrative authorities concerning a special sugar levy imposed by Council Regulation 1914/87, 6 which they considered incompatible with superior Community law.The German court hearing the case granted the suspension and made a preliminary reference to the Court of Justice on the question of valid ity of the regulation and the lawfulness of the whether the suspension ordered would be compatible with the full effectiveness of Certain interim relief awarded. As regards the latter aspect, the national court intended to ascertain Community Regulations in all Member States under Article 249 of the treaty The Court ruled that Article 249(ex Article 189)of the Treaty does not preclud national courts from suspend ing the application of a national measure implementing a Community regulation. However, it established certain cond itions which have to be fulfilled for the granting such a suspension, namely (i) the national court must have serious doubts as to the valid ity of the contested regulation; (ii) where the validity of such an act is not already in issue before the Court, the national court must itself refer such a question to the Court; (ii) there must be urgency and a threat of serious and irreparable damage to the applicant; and(iv) the national court must take due account of the Community interest common market organization for bananas and a common import regime replacing ishin The Atlanta case concerned the valid ity of Council Regulation 404/93, establ existing national arrangements. The said regulation had introduced a quota to be allocated to fruit traders within the European Community for the importation of bananas from third countries and ACP countries. Bananas coming from third countries were subject to a levy whereas fruit from the ACP area was duty free. Imports exceeding the quota were subject to a different tariff depend ing on their origin a decision by the German authorities granting them provisional licenses to mpo? peal against The plaintiffs were importers of third-country bananas, who brought an apl significantly lower quantities than they had imported in previous years. The applicants contested the valid ity of the regulation discontinuing the duty-free import quota which had been allocated to them until then, on the grounds that the introduction of import quotas and their allocation among operators within the Community were discriminatory and violated their right to property and the principles of legitimate expectations and proportionality At the same time, the importers applied for interim relief in the form of an order for the issuance of add itional import licenses at a reduced rate of customs duty. The nat ional court awarded such an order, not without referring to the European Court of Justice preliminary question on whether and under what cond itions a national judge may grant interim measures intended to create a new legal position Relying on its previous Zuckerfabrik ruling, the Court extended the applicability of the principles governing the suspension of enforcement of a domestic measure implementing Community legislation to interim relief in the form of a positive order to settle or regulate )1987L183/5 OJ1993,L47
deciding whether or not to grant such interim protection. Despite the specificity and clarity of the questions referred by the House of Lords, the Court of Justice confined itself to answering that ‘Community law must be interpreted as meaning that where a national court, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule’. Upon delivery of the ruling, the House of Lords awarded the interlocutory injunctions sought by the plaintiffs. The first case dealt with under a Z.A.P.-type situation was Zuckerfabrik. The applicants were sugar manufacturers who sought the suspension of a payment demand by German administrative authorities concerning a special sugar levy imposed by Council Regulation 1914/87,6 which they considered incompatible with superior Community law. The German court hearing the case granted the suspension and made a preliminary reference to the Court of Justice on the question of validity of the regulation and the lawfulness of the interim relief awarded. As regards the latter aspect, the national court intended to ascertain whether the suspension ordered would be compatible with the full effectiveness of Community Regulations in all Member States under Article 249 of the Treaty. The Court ruled that Article 249 (ex Article 189) of the Treaty does not preclude national courts from suspending the application of a national measure implementing a Community regulation. However, it established certain conditions which have to be fulfilled for the granting such a suspension, namely (i) the national court must have serious doubts as to the validity of the contested regulation; (ii) where the validity of such an act is not already in issue before the Court, the national court must itself refer such a question to the Court; (iii) there must be urgency and a threat of serious and irreparable damage to the applicant; and (iv) the national court must take due account of the Community interest. The Atlanta case concerned the validity of Council Regulation 404/93,7 establishing a common market organization for bananas and a common import regime replacing the existing national arrangements. The said regulation had introduced a quota to be allocated to fruit traders within the European Community for the importation of bananas from third countries and ACP countries. Bananas coming from third countries were subject to a levy, whereas fruit from the ACP area was duty free. Imports exceeding the quota were subject to a different tariff depending on their origin. The plaintiffs were importers of third-country bananas, who brought an appeal against a decision by the German authorities granting them provisional licenses to import significantly lower quantities than they had imported in previous years. The applicants contested the validity of the regulation discontinuing the duty-free import quota which had been allocated to them until then, on the grounds that the introduction of import quotas and their allocation among operators within the Community were discriminatory and violated their right to property and the principles of legitimate expectations and proportionality. At the same time, the importers applied for interim relief in the form of an order for the issuance of additional import licenses at a reduced rate of customs duty. The national court awarded such an order, not without referring to the European Court of Justice a preliminary question on whether and under what conditions a national judge may grant interim measures intended to create a new legal position. Relying on its previous Zuckerfabrik ruling, the Court extended the applicability of the principles governing the suspension of enforcement of a domestic measure implementing Community legislation to interim relief in the form of a positive order to settle or regulate 6 OJ 1987, L 183/5. 7 OJ 1993, L 47
disputed legal positions or relationships. In other words, interim measures provisionally the Court clarified the cond itions laid down in Zuckerfabrik for granting interim relier ore disapplying Community legislation could also be ordered by national judges. Furtherm The Port case also related to Council Regulation 404/93, but the litigation matter was different from that in Atlanta. The applicant company claimed that the licenses it had obtained to import third-country bananas, issued on the basis of its sales figures correspond ing to the reference years of 1989, 1990 and 1991, were insufficient. It was argued that during the reference period established as a basis for fixing the quota allocated, Port had been able to import an unusually small quantity of fruit due to the breach of contract by Colombian supplier. The plaintiff further maintained that it was affected by circumstances of exceptional hardship and that a dismissal of its request of add itional licenses was likely to lead the company to bankruptcy The matter reached the Bundesverfassungsgericht(German Federal Constitutional Court), which considered that since hardship cases were contemplated in the regulation in issue, add itional import licenses should be provisionally granted to the plaintiff in order to avoid an irreparable infringement of its right to property. However, the Court of Appeal making the award ordered by germanys highest tribunal referred three questions to the European Court of Justice, one of them concerning the cond itions under which a national court is authorized to grant interim relief. The Court ratified its Zuckerfabrik and Atlanta case law as regards the power conferred on national courts to grant interim measures and the cond itions under which this can be done in disputes where the valid ity of Community legislation is in issue. However, it ruled that the case under consideration fell outside the scope of the said jud gments. The Cour stated that, given the existence of a special procedure established by article 30 of Council Regulation 404/93 for dealing with hardship cases-under which it was for the European Commission to take the necessary transitional measures in order to address the difficulties f threatening the existence of importers when an exceptionally low quota was allocated to them national judges were not authorized to grant interim relief until such time as the Commission has adopted the said measures. If the Commission did not adopt the relevant decision following the filing of a request to do so, or expressly refused to act, or adopted a measure different from that which the trader sought or considered to be necessary, then an action for failure to act or an action for annulment, as the case may be, could be brought before the Community judicature, which has exclusive jurisdiction to order the necessary interim measures pend ing a final decision Unlike Zuckerfabrik and Atlanta, Port does not involve a challenge of the validity of Community legislation. Yet, it will be considered among the Z A P -type situation cases for systemic purposes, namely only insofar as it sets the outer limit of the jurisdiction conferred on national courts to grant interim relief. After Port, such power remains confined to those disputes where the validity of Community legislation is contested Common features and differences as regards the task assigned to national judges to grant interim relief arise between the two types of situation represented by Factortame and the set of German cases, respectively. An attempt to identify such differences will be made in a comparative perspective, within the framework of the three fundamental elements dealt with in procedural law analysis, namely action, jurisdiction, and process. The substantial aspects of the cases will be touched upon only incidentally The contents of the article will therefore be divided into three sections, correspond to each of the aforementioned elements of procedural law analysis. In order to address the particular characteristics of the field in issue, the said elements have been translated into Community law terminology as the right of the individual to obtain interim relief, the power of national courts to grant interim measures', and the exercise' of such jurisdiction
disputed legal positions or relationships. In other words, interim measures provisionally disapplying Community legislation could also be ordered by national judges. Furthermore, the Court clarified the conditions laid down in Zuckerfabrik for granting interim relief. The Port case also related to Council Regulation 404/93, but the litigation matter was different from that in Atlanta. The applicant company claimed that the licenses it had obtained to import third-country bananas, issued on the basis of its sales figures corresponding to the reference years of 1989, 1990 and 1991, were insufficient. It was argued that during the reference period established as a basis for fixing the quota allocated, Port had been able to import an unusually small quantity of fruit due to the breach of contract by a Colombian supplier. The plaintiff further maintained that it was affected by circumstances of exceptional hardship and that a dismissal of its request of additional licenses was likely to lead the company to bankruptcy. The matter reached the Bundesverfassungsgericht (German Federal Constitutional Court), which considered that since hardship cases were contemplated in the regulation in issue, additional import licenses should be provisionally granted to the plaintiff in order to avoid an irreparable infringement of its right to property. However, the Court of Appeal making the award ordered by Germany’s highest tribunal referred three questions to the European Court of Justice, one of them concerning the conditions under which a national court is authorized to grant interim relief. The Court ratified its Zuckerfabrik and Atlanta case law as regards the power conferred on national courts to grant interim measures and the conditions under which this can be done in disputes where the validity of Community legislation is in issue. However, it ruled that the case under consideration fell outside the scope of the said judgments. The Court stated that, given the existence of a special procedure established by Article 30 of Council Regulation 404/93 for dealing with hardship cases - under which it was for the European Commission to take the necessary transitional measures in order to address the difficulties threatening the existence of importers when an exceptionally low quota was allocated to them - national judges were not authorized to grant interim relief until such time as the Commission has adopted the said measures. If the Commission did not adopt the relevant decision following the filing of a request to do so, or expressly refused to act, or adopted a measure different from that which the trader sought or considered to be necessary, then an action for failure to act or an action for annulment, as the case may be, could be brought before the Community judicature, which has exclusive jurisdiction to order the necessary interim measures pending a final decision. Unlike Zuckerfabrik and Atlanta, Port does not involve a challenge of the validity of Community legislation. Yet, it will be considered among the Z.A.P.-type situation cases for systemic purposes, namely only insofar as it sets the outer limit of the jurisdiction conferred on national courts to grant interim relief. After Port, such power remains confined to those disputes where the validity of Community legislation is contested. Common features and differences as regards the task assigned to national judges to grant interim relief arise between the two types of situation represented by Factortame and the set of German cases, respectively. An attempt to identify such differences will be made in a comparative perspective, within the framework of the three fundamental elements dealt with in procedural law analysis, namely ‘action’, ‘jurisdiction’, and ‘process’. The substantial aspects of the cases will be touched upon only incidentally. The contents of the article will therefore be divided into three sections, corresponding to each of the aforementioned elements of procedural law analysis. In order to address the particular characteristics of the field in issue, the said elements have been translated into Community law terminology as the ‘right of the individual to obtain interim relief’, the ‘power of national courts to grant interim measures’, and the ‘exercise’ of such jurisdiction
respectively. Section 2 deals with an aspect of interim relief directly related to the principle of due process, including the right to bring an action and the access to a judge. The starting point of analysis will be the concept of judicial protection in the case law of the European Court of Justice, which provides the appropriate framework for ad dressing the rationale behind the udgments representing our two types of situation. The questions on whether that rationale is the same in both types of situation, whether Community law imposes upon national courts the duty to grant interim measures in all cases, and above all, whether ind ividuals enjoy an autonomous Community law right to obtain interim legal protection before national courts remain to be answered So far as the jurisdiction conferred upon national courts to grant interim measures in litigation involving EC law is concerned, the main thrust of the analysis will be focused or the source from which such power emanates and the grounds relied upon by the Court of Justice in order to define it. In addition, the said jurisdiction will be addressed from a procedural law perspective, on the basis of the relationship and interplay between the award of interim relief and the decision of a case on the substance, and within the particular context of the Community law preliminary rulings mechanism under Article 234 of the Treaty, in order to determine how and to what extent such power is exclusive or concurrent vis-a-vis the jurisd iction of the Court of Justice and the Court of First Instance under Articles 242 and 243 of the treat national judges to grant interim relief, namely (i the availability of remedies and ithe fed upon Four aspects will be covered by section 4 on the exercise of the power conferred upon procedural rules applicable to interlocutory proceedings, (ii) the cond itions and requirements under which interim measures may be ordered, (ii) the discretion reserved to national courts for the evaluation of the fulfilment of such cond itions and for the adoption of a decision on whether to make an award in a particular case, and (iv) the possibil ity of judicial review of the decision adopted by a national court. Perhaps the most significant issues to be discussed here will be the extent to which national procedural autonomy is affected by the requirements laid down by the Court of Justice in the Z.A.P. litigation and, on the other hand whether the conditions applicable to the award of interim measures under a Factortame-type situation should be left entirely to the different procedural law systems of the Member States It should be noted that the normative aspect of interim relief before national courts has been progressively developed through case law only. Although the judgments rendered by the European Court of Justice allow the elaboration of somewhat general principles governing the award of interim measures under the two types of situation, the lack of a systematic procedural law approach, not only on the part of the Court but also in legal literature entails intrinsic difficulties in drawing the lines among the three elements on the basis of which the research will be conducted. In these circumstances, some occasiona/e overlaps will be unavoidable After the issues presented in this introductory section have been fully discussed, the possibilities of discovering whether a complete and autonomous system of interim jud icial protection of Community law rights before national courts is emerging will hopefully be much greater 2. The right to obtain interim relief before national courts 2. 1 Direct, immediate and effective judicial protection The importance attributed to the role of individuals in the European integration process led
respectively. Section 2 deals with an aspect of interim relief directly related to the principle of due process, including the right to bring an action and the access to a judge. The starting point of analysis will be the concept of judicial protection in the case law of the European Court of Justice, which provides the appropriate framework for addressing the rationale behind the judgments representing our two types of situation. The questions on whether that rationale is the same in both types of situation, whether Community law imposes upon national courts the duty to grant interim measures in all cases, and above all, whether individuals enjoy an autonomous Community law right to obtain interim legal protection before national courts remain to be answered. So far as the jurisdiction conferred upon national courts to grant interim measures in litigation involving EC law is concerned, the main thrust of the analysis will be focused on the source from which such power emanates and the grounds relied upon by the Court of Justice in order to define it. In addition, the said jurisdiction will be addressed from a procedural law perspective, on the basis of the relationship and interplay between the award of interim relief and the decision of a case on the substance, and within the particular context of the Community law preliminary rulings mechanism under Article 234 of the Treaty, in order to determine how and to what extent such power is exclusive or concurrent vis-à-vis the jurisdiction of the Court of Justice and the Court of First Instance under Articles 242 and 243 of the Treaty. Four aspects will be covered by section 4 on the exercise of the power conferred upon national judges to grant interim relief, namely (i) the availability of remedies and the procedural rules applicable to interlocutory proceedings, (ii) the conditions and requirements under which interim measures may be ordered, (iii) the discretion reserved to national courts for the evaluation of the fulfilment of such conditions and for the adoption of a decision on whether to make an award in a particular case, and (iv) the possibility of judicial review of the decision adopted by a national court. Perhaps the most significant issues to be discussed here will be the extent to which national procedural autonomy is affected by the requirements laid down by the Court of Justice in the Z.A.P. litigation and, on the other hand, whether the conditions applicable to the award of interim measures under a Factortame-type situation should be left entirely to the different procedural law systems of the Member States. It should be noted that the normative aspect of interim relief before national courts has been progressively developed through case law only. Although the judgments rendered by the European Court of Justice allow the elaboration of somewhat general principles governing the award of interim measures under the two types of situation, the lack of a systematic procedural law approach, not only on the part of the Court but also in legal literature, entails intrinsic difficulties in drawing the lines among the three elements on the basis of which the research will be conducted. In these circumstances, some occasional overlaps will be unavoidable. After the issues presented in this introductory section have been fully discussed, the possibilities of discovering whether a complete and autonomous system of interim judicial protection of Community law rights before national courts is emerging will hopefully be much greater. 2. The right to obtain interim relief before national courts 2.1 Direct, immediate and effective judicial protection The importance attributed to the role of individuals in the European integration process led
the Court of Justice to point out already at an early stage that the rights conferred by entrusted with the major task of ensuring legal protection of rights natural persons and en Community law are d irectly enforceable before national courts. National jud ges have bee corporate bodies derive from Community law. Through the recognition of the direct enforceability of substantive Community law rights, individuals have also been afforded a procedural Community law right to judicial protection before national courts are entitled, ruling that Community law requires national courts not only to protect the uo In Salgoil, the Court established the type of judicial protection to which individuals interests of those persons subject to their jurisdiction who may be affected by any possible infringement of Treaty provisions, but to do so directly and immediately. In Bozzetti, o the Court further stated that national judges are responsible for ensuring that rights derived from Community law are effectively protected Upon the recognition and development of the concepts of direct effect and the supremacy of Community law, many judgments following the same doctrine of the cases individuals claimed to benefit from the rights granted to them by the Treaty /iS, whel o ited above have been rendered by the court as a result of the more frequent and extended recourse to Article 234 of the Treaty in disputes pending before domestic cour Judicial protection comprises both access to a judge and the availability of remedies The right to a remedy before courts of law, as a general principle of Community law, reflects the constitutional trad itions of the Member States and entails a ratification of the legal standards contained in Articles 6 and 13 of the European Convention of Human Rights In summary, national judges must guarantee the legal protection of rights individuals derive from Community law. Such protection encompasses the right to direct, effective, and immediate legal coverage and the consequent availability of appropriate judicial remedies 2.2 Rationale behind the case law of the European Court of Justice 2.2. 1 Factortame-type situation In Factortame, the question submitted by the House of lords and the answer of the European Court of Justice dealt with aspects, the analysis of which rather corresponds to the next sections of this article, namely the jurisdiction to grant interim measures and the exercise of such jurisdiction. In fact, the Court did not expressly refer to a right to obtain interim relief before national courts. However, the twofold reasoning contained in its landmark entails an implicit recognition of the existence of such a right Firstly, the Court stated that, in accordance with its case law, it is for the national See Case 26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen(1963)ECR I an Case 6/64, Costa v Enel(1964 )ECR 1141 Case 13/68, Salgoil SpA v. Italian Ministry for Foreign Trade(1968)ECR 453 10 Case 179/84, Bozzettiv Lutermizzi Spa and Ministero del Tesoro(1985)ECR 2301 For a comprehensive overview of the case law of the European Court of Justice in this area, see, among others, P. Cra ig andG. de burca(1996)EC Law: Text, Cases and Materials, Oxford: Clarendon Press; D. Wyatt and A Dashwood(1992)European Community Law, London: Sweet& Maxwell; and D. Pollard and M. ross (1994)European Community La. Text and Materials, London/Dublin/Edinburgh: Butterworths See Case 222/84, Johnston v Chief Constable of the Royal Ulster Constabulary(1986)ECR 1651 and Case 222/86, UNCTEF v Heylens(1987)ECR 4097. See also Case C-50/00, Union de Pequenos Agricultores v Council of the European Union(2002)ECR 1-6677
the Court of Justice to point out already at an early stage that the rights conferred by Community law are directly enforceable before national courts. National judges have been entrusted with the major task of ensuring legal protection of rights natural persons and corporate bodies derive from Community law.8 Through the recognition of the direct enforceability of substantive Community law rights, individuals have also been afforded a procedural Community law right to judicial protection before national courts. In Salgoil, 9 the Court established the type of judicial protection to which individuals are entitled, ruling that Community law requires national courts not only to protect the interests of those persons subject to their jurisdiction who may be affected by any possible infringement of Treaty provisions, but to do so directly and immediately. In Bozzetti, 10 the Court further stated that national judges are responsible for ensuring that rights derived from Community law are effectively protected. Upon the recognition and development of the concepts of direct effect and the supremacy of Community law, many judgments following the same doctrine of the cases cited above have been rendered by the Court as a result of the more frequent and extended recourse to Article 234 of the Treaty in disputes pending before domestic courts, where individuals claimed to benefit from the rights granted to them by the Treaty.11 ‘Judicial protection’ comprises both access to a judge and the availability of remedies. The right to a remedy before courts of law, as a general principle of Community law, reflects the constitutional traditions of the Member States and entails a ratification of the legal standards contained in Articles 6 and 13 of the European Convention of Human Rights.12 In summary, national judges must guarantee the legal protection of rights individuals derive from Community law. Such protection encompasses the right to direct, effective, and immediate legal coverage and the consequent availability of appropriate judicial remedies. 2.2 Rationale behind the case law of the European Court of Justice 2.2.1 Factortame-type situation In Factortame, the question submitted by the House of Lords and the answer of the European Court of Justice dealt with aspects, the analysis of which rather corresponds to the next sections of this article, namely the jurisdiction to grant interim measures and the exercise of such jurisdiction. In fact, the Court did not expressly refer to a right to obtain interim relief before national courts. However, the twofold reasoning contained in its landmark ruling entails an implicit recognition of the existence of such a right. Firstly, the Court stated that, in accordance with its case law, ‘it is for the national 8 See Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen (1963) ECR 1 and Case 6/64, Costa v. Enel (1964) ECR 1141. 9 Case 13/68, Salgoil SpA v. Italian Ministry for Foreign Trade (1968) ECR 453. 10 Case 179/84, Bozzetti v. Lutermizzi Spa and Ministero del Tesoro (1985) ECR 2301. 11 For a comprehensive overview of the case law of the European Court of Justice in this area, see, among others, P. Craig and G. de Burca (1996) EC Law: Text, Cases and Materials, Oxford: Clarendon Press; D. Wyatt and A. Dashwood (1992) European Community Law, London: Sweet & Maxwell; and D. Pollard and M. Ross (1994) European Community Law: Text and Materials, London/Dublin/Edinburgh: Butterworths. 12 See Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary (1986) ECR 1651 and Case 222/86, UNCTEF v. Heylens (1987) ECR 4097. See also Case C-50/00, Unión de Pequeños Agricultores v. Council of the European Union (2002) ECR I-6677
having full effectiveness. Taking into account that the interim relief sought by the app3= 3. courts, in application of the principle of co-operation laid down in Article 5 of the EC Tr Inow Article 10; SA], to ensure the legal protection which persons derive from the d irect effect of provisions of Community law, and rely ing on Simmenthal, 4 further instructed the House of lords on setting aside the national provision preventing Community rules fror was intended to ensure the full effectiveness of a prospect judgment on the existence of rights claimed under Community law, the Court concluded that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule As a reinforcing ground, the Court pointed out that the effectiveness of the system who submitted a question for a preliminary ruling and stayed the proceedings were not abases established by Article 234(ex Article 177)of the Treaty would be impaired if national jud to grant interim relief until a jud gment was rendered on the main action The idea behind the reasoning of the Court can be summarized as follows: if provisional judicial protection of Community law rights is not available, the full efficacy of a jud gment to be rendered on the merits of the case could be endangered during the period of time elapsing until such a judicial decision is delivered Regardless of the -merely reinforcing-status the Court attributed to the ground relating to the need to preserve the effectiveness of the system established by Article 234 of the Treaty, its importance cannot be underestimated. In some cases, the considerable length of time needed by the Court to render a preliminary ruling may itself constitute a valid reason to believe that individuals should enjoy a Community law right to obtain interim relief before national courts. Among such cases are those in which a prompt judicial decision would be normally available and irreparable damage thus avoided if no recourse to article 234 of the Treaty were necessar Full compliance with the principle of effective judicial protection requires immediate availability of a remedy to protect Community law rights, pending determination of the substance of the relevant case. The Factortame jud gment ratifies this idea, extending the principles of the Courts previous case law on legal protection of Community law rights to the field of interim measures I Lambros Papadias states that according to the Court of Justice there should be continuous and coherent protection between the coming into being and the establishment of the existence of directly applicable Community law rights, and whenever the retroactive effect of a ruling risks being deprived of any meaning for the parties concerned, interim relief must be available to ensure that the final judgment will indeed be effective and operative. It can be said in this regard that in factortame, the Court of Justice recognized the right to In Case 106/77, Adm inistrazione delle Finanze dello Stato v Simmenthal(1978 ECR 629, the Court had stated that Community la wprovisions and measures must be fully and uniformly applied in all the Member States., and that as from their entry into force, they render automatically inapplicable any conflicting provision of national law 5 See Factortame, para. 22 See Ami Barav(1989)Enforcement of Community Rights in the National Courts: The Case for Jurisdiction to Grant an Interim Relief, CMLRev. 26, 369-390, p. 369 17 Lambros Papadias(1994) Interim Protection under Community Law before the Na tional Courts: The Right to a Judge with Jurisdiction to Grant Interim Relief, LIEl 1994/2, 153-193, p. 172
courts, in application of the principle of co-operation laid down in Article 5 of the EC Treaty [now Article 10; SA], to ensure the legal protection which persons derive from the direct effect of provisions of Community law’,13 and relying on Simmenthal, 14 further instructed the House of Lords on setting aside the national provision preventing Community rules from having full effectiveness. Taking into account that the interim relief sought by the applicants was intended to ensure the full effectiveness of a prospect judgment on the existence of rights claimed under Community law, the Court concluded that ‘a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule’. As a reinforcing ground, the Court pointed out that the effectiveness of the system established by Article 234 (ex Article 177) of the Treaty would be impaired if national judges who submitted a question for a preliminary ruling and stayed the proceedings were not able to grant interim relief until a judgment was rendered on the main action.15 The idea behind the reasoning of the Court can be summarized as follows: if provisional judicial protection of Community law rights is not available, the full efficacy of a judgment to be rendered on the merits of the case could be endangered during the period of time elapsing until such a judicial decision is delivered. Regardless of the - merely reinforcing - status the Court attributed to the ground relating to the need to preserve the effectiveness of the system established by Article 234 of the Treaty, its importance cannot be underestimated. In some cases, the considerable length of time needed by the Court to render a preliminary ruling may itself constitute a valid reason to believe that individuals should enjoy a Community law right to obtain interim relief before national courts. Among such cases are those in which a prompt judicial decision would be normally available and irreparable damage thus avoided, if no recourse to Article 234 of the Treaty were necessary. Full compliance with the principle of effective judicial protection requires immediate availability of a remedy to protect Community law rights, pending determination of the substance of the relevant case. The Factortame judgment ratifies this idea, extending the principles of the Court’s previous case law on legal protection of Community law rights to the field of interim measures.16 Lambros Papadias17 states that ‘according to the Court of Justice there should be continuous and coherent protection between the coming into being and the establishment of the existence of directly applicable Community law rights’, and ‘whenever the retroactive effect of a ruling risks being deprived of any meaning for the parties concerned, interim relief must be available to ensure that the final judgment will indeed be effective and operative’. It can be said in this regard that in Factortame, the Court of Justice recognized the right to 13 Factortame, para. 19. 14 In Case 106/77, Administrazione delle Finanze dello Stato v. Simmenthal (1978) ECR 629, the Court had stated that Community law provisions and measures ‘must be fully and uniformly applied in all the Member States . . .’, and that as from their entry into force, they ‘render automatically inapplicable’ any conflicting provision of national law. 15 See Factortame, para. 22. 16 See Ami Barav (1989) ‘Enforcement of Community Rights in the National Courts: The Case for Jurisdiction to Grant an Interim Relief’, CMLRev. 26, 369-390, p. 369. 17 Lambros Papadias (1994) ‘Interim Protection under Community Law before the Na tional Courts: The Right to a Judge with Jurisdiction to Grant Interim Relief’, LIEI 1994/2, 153- 193, p. 172
obtain interim measures before national courts as an integral part of the Community law concept of direct, immed iate and effective jud icial protection Beyond the issue whether Factortame made available an add itional remedy for the protection of putative rights, 8 a matter which will be discussed below, it is worth noting that above all, the most important contribution of the Courts ruling is the recognition of a Community law right to obtain interim legal protection, regardless of the authority against which the interim relief is granted and irrespective of the means or remedies through which such protection is provided. Taking into account that the right to obtain provisional suspension of enforcement of an Act of Parliament against the Crown did not exist under the national law provision preventing the award of the injunctions, the Court implicitly English law for purely domestic disputes, by instructing the House of Lords on setting aside recognized an autonomous right to obtain interim relief in order to safeguard the effectiveness of a decision to be rendered on the existence of the rights claimed unde Community law. 19 2.2.2Z.A. P-type situation In Zuckerfabrik, a Community law right to obtain interim relief before national courts was recognized in more straightforward terms. Here, such a right was in fact considered to be an ancillary aspect of the right to challenge the valid ity of Community legislation The reasoning of the European Court of Justice departs from the concept of legal protection, which includes- for those cases where national authorities are responsible for the administrative implementation of Community regulations-the right of individuals to challenge the validity of such regulations before national courts and to induce those courts to make a preliminary reference to the Court of Justice. As a consequence of the long time which elapses from the moment a case is brought before a national judge until a preliminar ruling on the valid ity of the contested measure is rendered, individuals should be provisionally protected through the suspension of enforcement of the said measure. 20 Referring to its statement in Factortame as to the suspension of the application of disputed domestic legislation prima facie incompatible with Community law until such time as the national court could deliver a judgment on the merits following a preliminary ruling under article 234, the Court concluded that Community law interim legal protection must remain the same, since in both Factortame and Zuckerfabrik the relevant disputes were based on Community law.21 The Court confirmed this reasoning in Atlanta, extending the Zuckerfabrik rule on the suspension of enforcement of national acts implementing Community legislation to positive See Peter Oliver(1992)"Interim Measures: Some Recent Developments, CMLRev 29, 7-27, p 16,A G. Toth(1990)"Comment on Factortame, CMLRev 27, 573-585, p 585; and Lam bros Papadias, loc cit, p See Lam bros Papadias, loc cit, pp. 177-178: Community citizens not only have a right to enforce the Community rights conferred upon them, but they are also, after Factortame, entitled to a judge with a urisdiction to grant, where necessary, interim relief. See also Ami Barav, loc cit, p. 369: The availability of dequate judicial remedies in the national courts in relation to claims arising under the EEC Treaty constitutes an essential requirement of Community law. Although using different term nology, both authors seem to favour he same underly ing idea of our proposition See Zuckerfabrik, paras. 16-17 See Zuckerfabrik, paras. 16, 17, 19 and 20
obtain interim measures before national courts as an integral part of the Community law concept of direct, immediate and effective judicial protection. Beyond the issue whether Factortame made available an additional ‘remedy’ for the protection of putative rights,18 a matter which will be discussed below, it is worth noting that, above all, the most important contribution of the Court’s ruling is the recognition of a Community law right to obtain interim legal protection, regardless of the authority against which the interim relief is granted and irrespective of the means or remedies through which such protection is provided. Taking into account that the right to obtain provisional suspension of enforcement of an Act of Parliament against the Crown did not exist under English law for purely domestic disputes, by instructing the House of Lords on setting aside the national law provision preventing the award of the injunctions, the Court implicitly recognized an autonomous right to obtain interim relief in order to safeguard the effectiveness of a decision to be rendered on the existence of the rights claimed under Community law.19 2.2.2 Z.A.P-type situation In Zuckerfabrik, a Community law right to obtain interim relief before national courts was recognized in more straightforward terms. Here, such a right was in fact considered to be an ancillary aspect of the right to challenge the validity of Community legislation. The reasoning of the European Court of Justice departs from the concept of legal protection, which includes - for those cases where national authorities are responsible for the administrative implementation of Community regulations - the right of individuals to challenge the validity of such regulations before national courts and to induce those courts to make a preliminary reference to the Court of Justice. As a consequence of the long time which elapses from the moment a case is brought before a national judge until a preliminary ruling on the validity of the contested measure is rendered, individuals should be provisionally protected through the suspension of enforcement of the said measure.20 Referring to its statement in Factortame as to the suspension of the application of disputed domestic legislation prima facie incompatible with Community law until such time as the national court could deliver a judgment on the merits following a preliminary ruling under Article 234, the Court concluded that Community law interim legal protection must remain the same, since in both Factortame and Zuckerfabrik the relevant disputes were based on Community law.21 The Court confirmed this reasoning in Atlanta, extending the Zuckerfabrik rule on the suspension of enforcement of national acts implementing Community legislation to positive 18 See Peter Oliver (1992) ‘Interim Measures: Some Recent Developments’, CMLRev. 29, 7-27, p. 16; A. G. Toth (1990) ‘Comment on Factortame’, CMLRev. 27, 573-585, p. 585; and Lambros Papadias, loc. cit., p. 173. 19 See Lambros Papadias, loc. cit., pp. 177-178: ‘Community citizens not only have a right to enforce the Community rights conferred upon them, but they are also, after Factortame, entitled to a judge with a jurisdiction to grant, where necessary, interim relief.’ See also Ami Barav, loc. cit., p. 369: ‘The availability of adequate judicial remedies in the national courts in relation to claims arising under the EEC Treaty constitutes an essential requirement of Community law.’ Although using different terminology, both authors seem to favour the same underlying idea of our proposition. 20 See Zuckerfabrik, paras. 16-17. 21 See Zuckerfabrik, paras. 16, 17, 19 and 20
interim orders provisionally disapplying such legislation. 22 Although in Port the Court dismissed the possibility of obtaining interim relief before the national court, it ratified the principles established in its previous case law. The Court stated that unlike in Zuckerfabrik and Atlanta, the applicant company Port was not in fact challenging the validity of the regulation in issue, but rather seeking at the domestic level ruling substituting a decision which was only for the European Commission to adopt under the special procedure provided for by the said regulation for dealing with hardship cases However, if the Commission did not adopt the relevant decision upon the applicants request or expressly refused to act, or adopted a measure different from that sought or considered by the plaintiff to be necessary, then an action for failure to act or an action for annulment could be brought before the Community judicature, whose exclusive competence on the matter also includes securing the applicants right to obtain provisional legal protection through the award of the necessary interim measures pending a final decision. In such cases, the right to interim relief would be based d irectly on Article 243 of the Treaty. 23 o summarize, the Z.A.P. case law provides the foundations of a Community lay right to obtain interim legal protection where the validity of Community regulations implemented at the national level is challenged before the domestic courts 2.2.3 Factortame and Z.A. P. Common feature The first common element arising from read ing the judgments representing our two types of situation is that the right to obtain interim relief before national courts forms an ind issoluble part of the Community law concept of direct, immediate, and effective judicial protection Legal protection guaranteed by Community law before national courts extends to both established and putative or merely claimed Community law rights. 24 In other words, it covers the entirety of a jud icial action intended to establish the existence of Community law rights and the enforcement thereof, includ ing its main aspect-and ultimate purpose namely the delivery of a decision on the substance, and also its ancillary aspect, namely the adoption of all the necessary provisional protective measures to ensure the efficacy of a final judgment In Z.A. P, the Court goes back to its merely reinforcing' argument in Factortame as to the need to safeguard the effectiveness of the preliminary rulings system set forth in Article 234(ex Article 177)of the Treaty, and considers that the interim legal protection which Community law ensures for individuals before national courts must remain the same in both types of situation. 25 This statement confirms the hypothesis that, even though factortame the Court had not dealt specifically with the right to obtain interim judicial protection, it had implicitly recognized such a right. Secondly, it is made clear that the right to interim legal protection before national courts Community law ensures for individuals may equally be invoked in cases where the compatibility of a national measure with Community law is in issue, as well as where the valid ity of Community regulations implemented in the Member States is contested Community law right exists, it is necessary to have some mechanism to protect It pendin a Sharpston states: The position of the European Court can be stated quite briefly See Atlanta, para. 28 See Port, paras. 52-60 See Lam bros Papadias, loc cit, pp 153-193 See Factortame, para. 22, Zuckerfabrik, para. 20; Atlanta, para. 24, and Port, para. 51
interim orders provisionally disapplying such legislation.22 Although in Port the Court dismissed the possibility of obtaining interim relief before the national court, it ratified the principles established in its previous case law. The Court stated that unlike in Zuckerfabrik and Atlanta, the applicant company Port was not in fact challenging the validity of the regulation in issue, but rather seeking at the domestic level a ruling substituting a decision which was only for the European Commission to adopt under the special procedure provided for by the said regulation for dealing with hardship cases. However, if the Commission did not adopt the relevant decision upon the applicant’s request, or expressly refused to act, or adopted a measure different from that sought or considered by the plaintiff to be necessary, then an action for failure to act or an action for annulment could be brought before the Community judicature, whose exclusive competence on the matter also includes securing the applicant’s right to obtain provisional legal protection through the award of the necessary interim measures pending a final decision. In such cases, the right to interim relief would be based directly on Article 243 of the Treaty.23 To summarize, the Z.A.P. case law provides the foundations of a Community law right to obtain interim legal protection where the validity of Community regulations implemented at the national level is challenged before the domestic courts. 2.2.3 Factortame and Z.A.P.: Common features The first common element arising from reading the judgments representing our two types of situation is that the right to obtain interim relief before national courts forms an indissoluble part of the Community law concept of direct, immediate, and effective judicial protection. Legal protection guaranteed by Community law before national courts extends to both established and putative or merely claimed Community law rights.24 In other words, it covers the entirety of a judicial action intended to establish the existence of Community law rights and the enforcement thereof, including its main aspect - and ultimate purpose -, namely the delivery of a decision on the substance, and also its ancillary aspect, namely the adoption of all the necessary provisional protective measures to ensure the efficacy of a final judgment. In Z.A.P., the Court goes back to its merely ‘reinforcing’ argument in Factortame as to the need to safeguard the effectiveness of the preliminary rulings system set forth in Article 234 (ex Article 177) of the Treaty, and considers that the interim legal protection which Community law ensures for individuals before national courts must remain the same in both types of situation.25 This statement confirms the hypothesis that, even though in Factortame the Court had not dealt specifically with the right to obtain interim judicial protection, it had implicitly recognized such a right. Secondly, it is made clear that the right to ‘interim legal protection before national courts’ Community law ensures for individuals may equally be invoked in cases where the compatibility of a national measure with Community law is in issue, as well as where the validity of Community regulations implemented in the Member States is contested. Sharpston states: ‘The position of the European Court can be stated quite briefly if a Community law right exists, it is necessary to have some mechanism to protect it pending 22 See Atlanta, para. 28. 23 See Port, paras. 52-60. 24 See Lambros Papadias, loc. cit., pp. 153-193. 25 See Factortame, para. 22; Zuckerfabrik, para. 20; Atlanta, para. 24; and Port, para. 51