9. Interim measures

Question 1

legal basis

Answer 1

Art. 278 (suspension) and Art. 279 (interim measures)

Question 2

what is the objective of the procedure

Answer 2

provisional legal protection before the main action is decided

Question 3

who can ask for interim measures?

Answer 3

! You must have proceedings against the court

• Article 278 TFEU: the applicant who has challenged the act
• Article 279 TFEU: any party to the main proceedings

Question 4

what does “ancillary to the main proceedings” mean?

Answer 4

The interim measures must be requested parallel to the main proceedings.

Article 278 and 279 TFEU demonstrate that the interim measures are ancillary to the contested act. This means measures are requested parallel to main proceedings.

For 278 TFEU –> Art. 160(1) RPC the application to suspend is admissible only if the applicant is challenged the act or measure in an action before the court

For Article 279 TFEU –> Art. 160(2) RPC: application may be admissible only if it is made by a party to the case and relates to that case

Question 5

Conditions for the interim measures

Answer 5

The conditions for interim measures are cumulative:

1. Urgency (serious and irreparable damage) - Art. 160 (3) RPC
   e. g. Commission v. Poland (independence of the judges)
2. Fumus boni juris: establishing that you have good arguments that make the main proceedings possible and that the interim measure certainly is not manifestly unfounded or manifestly inadmissible - Art. 160 (3) RPC
   e. g. (Sharpston)
3. Balancing of interests - case-law

Question 6

Balancing of interests

Answer 6

Balancing of interests is one of the conditions for interim measures. Interest in the interim measure is not compensated by the other interests of the opponent, the third parties, or general interest of the Union.
Examples:
• Commission v Ireland: directive about public work contracts. Infringement taken place in contract of furniture in water supply. Commission asked to block decision to give the water pipes to another company. The court rejected the suspension of award of any construction contract because ”the aggravation of the existence of health and safety for the habitants in area concerned would happen if the contracts are delayed”. The danger of the population are balancing in favor of the defendant.
• Commission v Belgium: Walloon region had bought buses without respecting the directive on the procurement procedure. The infringement was manifest. There was urgency because the competitors lost the contracts. Walloon region stated that the replacement of buses undermines the safety of governments which should guarantee public transportation. The court noticed that Belgium had omitted to take all necessary measures on time to avoid the endangering the safety of customers and road users. Such an omission is likely to prevent balance of interests. The court refused the interim measures due to circumstances and seriousness of the risks involved.

Question 7

Specific elements of the procedure

Answer 7

• Separate document (art.160 § 3 & 4 RPC)
• The application can be made at any time in the main proceedings
• ‘Summary Procedure’ (art. 39 of the Statute of the Court): simplified rapid procedure
• Reasoned order of the Vice-President of the ECJ (art. 10 of the Statute of the Court and Decision 2012/671/EU) (who may refer the application to the Court) or of the President of the General Court

Question 8

Effects of an order

Answer 8

Shall be without prejudice to the decision of the Court on the substance of the case (art.162 § 4 RPC)

The order has an interim effect: it is provisional for a limited time, the latest until the final judgment of the proceedings. It cannot contradict the main case and it remains in force either until the final judgment or the date fixed in the order.

Interim measures may be cancelled or varied (e.g. change of circumstances)

Interim measures cannot be appealed (Art. 162 para 1 RPC)