determination of the substance of the case. 26 The rationale behind the judgments discussed is thus a somewhat pragmatic one. Where a matter of Community law arises in litigation before national courts, and a preliminary question is submitted to the Court of Justice under Artic 234 of the Treaty, it will take a particularly long period of time until a ruling is rendered27 and the national court is therefore able to deliver a decision on the merits of the case durins such a lengthy period of time, the applicant may well suffer irreparable damage, rendering completely useless its recourse to legal action. 28 The reverse side of the Community law right to interim legal protection before national courts is the duty imposed on those courts to consider granting interim measures if requested by a party to do so. 9However, individuals do not enjoy an unqualified right to obtain interim relief. At this point of the analysis, it will suffice to say that interim measures should be made available only in appropriate cases. 0 The issue is closely related to the conditions under which such measures may be ordered, and will therefore be fully addressed in the next section, which deals with the exercise of the power to grant interim relief 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 The first part of the preliminary question referred by the House of lords in Factortame was very specific as to the purpose of knowing whether Community law either obliges or empowers national courts to grant interim measures. I The Court of Justice, however, Eleanor Sharpston(1993)Interim and Substantive Reliefin Claims under Community La, Current EC Legal Developments Series, London: Butterworths, p. 26 27 See Eleanor Sharpston, loc cit, p. 26, whose statistics indicate that the average duration of preliminary ruling proceedings is 18 to 19 months, and not less than 1 l to 12 months forurgent matters 28 See Gerhard Bebr(1996)Comment on Atlanta, CMLRev. 33, 795-809, p 805. " The considerable length of time the Court at present needs to render a preliminary ruling underlines the growing importance of interim protection of individuals 29 Although presented in a different context, this idea has been borrowed from Peter Oliver, loc cit, p. 23 In Factortame, Advocate General Tesauro held: The obligation imposed by Community law on the nationalcourt to ensure the effective judicial protection of rights directly conferred on the individual by provisions of Community law includes the obligation, if the need arises and where the factual and legal preconditions are met, to afford interim and urgent protection to rights claimed on the basis of such provisions f Community law, pending a final determ ination and any interpretation by way of a preliminary ruling given by the Court of justice The first part of the question was drafted as follows: Where-()a party before the national court claims to be entitled to rights under Community law having direct effect in national law( the rights claimed), a national measure in clear terms will, if applied, automatically deprive the party of the rights claimed, (in) there are serious arguments both for and a gainst the existence of the rights claimed and the nationalcourt has sought a preliminary ruling under Article 177(now Article 234)as to whether or not the rights claimed exist, (iv) the national law presumes the national measure in question to be compatible with Community la wunless and claimed by suspending the application of the national measure pendingthe preliminary ruling,(vi)the G until it is declared incompatible, (v) the national court has no power to give interim protection to the right prelim inary ruling is in the event in favor of the rights claimed, the party entitled to those rights is likely to have
determination of the substance of the case.’26 The rationale behind the judgments discussed is thus a somewhat pragmatic one. Where a matter of Community law arises in litigation before national courts, and a preliminary question is submitted to the Court of Justice under Article 234 of the Treaty, it will take a particularly long period of time until a ruling is rendered27 and the national court is therefore able to deliver a decision on the merits of the case. During such a lengthy period of time, the applicant may well suffer irreparable damage, rendering completely useless its recourse to legal action.28 The reverse side of the Community law right to interim legal protection before national courts is the duty imposed on those courts to consider granting interim measures if requested by a party to do so.29 However, individuals do not enjoy an unqualified right to obtain interim relief. At this point of the analysis, it will suffice to say that interim measures should be made available only in appropriate cases.30 The issue is closely related to the conditions under which such measures may be ordered, and will therefore be fully addressed in the next section, which deals with the exercise of the power to grant interim relief. 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 The first part of the preliminary question referred by the House of Lords in Factortame was very specific as to the purpose of knowing whether Community law either obliges or empowers national courts to grant interim measures.31 The Court of Justice, however, 26 Eleanor Sharpston (1993) Interim and Substantive Relief in Claims under Community Law, Current EC Legal Developments Series, London: Butterworths, p. 26. 27 See Eleanor Sharpston, loc. cit., p. 26, whose statistics indicate that the average duration of preliminary ruling proceedings is 18 to 19 months, and not less than 11 to 12 months for urgent ma tters. 28 See Gerhard Bebr (1996) ‘Comment on Atlanta’, CMLRev. 33, 795-809, p. 805. ‘The considerable length of time the Court at present needs to render a preliminary ruling underlines the growing importance of interim protection of individuals’. 29 Although presented in a different context, this idea has been borrowed from Peter Oliver, loc. cit., p. 23. 30 In Factortame, Advocate General Tesauro held: ‘The obligation imposed by Community law on the national court to ensure the effective judicial protection of rights directly conferred on the individual by provisions of Community law includes the obligation, if the need arises and where the factual and legal preconditions are met, to afford interim and urgent protection to rights claimed on the basis of such provisions of Community law, pending a final determination and any interpretation by way of a preliminary ruling given by the Court of Justice.’ 31 The first part of the question was drafted as follows: ‘Where - (i) a party before the national court claims to be entitled to rights under Community law having direct effect in national law (“the rights claimed”), (ii) a national measure in clear terms will, if applied, automatically deprive the party of the rights claimed, (iii) there are serious arguments both for and against the existence of the rights claimed and the national court has sought a preliminary ruling under Article 177 (now Article 234) as to whether or not the rights claimed exist, (iv) the national law presumes the national measure in question to be compatible with Community law unless and until it is declared incompatible, (v) the national court has no power to give interim protection to the rights claimed by suspending the application of the national measure pending the preliminary ruling, (vi) if the preliminary ruling is in the event in favor of the rights claimed, the party entitled to those rights is likely to have
disregarded the word ing of the question and reduced its scope, availing itself to answer whether a national court which, 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 disapply that rule. The explanation given by the Court for adopting such changes lacks originality and the arguments are not very convincing. 32 But leaving aside such explanation and whatever other unexpressed reasons or constraints the Court may have had or encountered, it is obvious that the Court placed the question in a different framework and approached the matter in its own terms In these circumstances, the Court achieved a significant degree of simplification of the issues raised by the House of Lords, which led it to conclude that a domestic law provision stand ing as an obstacle to the granting of interim protection by national courts must be set aside, instead of openly stating whether Community law obliges or empowers such courts to grant interim relief. The lack of a def inition of the nature and scope of such juris iction prompted part of the doctrine to criticize the judgment. 33 Perhaps it will be worth reviewing the reasoning of the Court from a different perspective, in order to ascertain whether such a criticism remains as wise as it may seem at first sight Most of the academic attention devoted to factortame has been mainly concentrated on the section of the judgment dealing with the setting aside of the conflicting national merely reduced to an already trad itional supremacy issue. 4 Departing from such d ce of legislation preventing the award of the injunctions sought by the applicants. The essen the problem raised by the house of lords- as concluded categorically by some authors-was assumption, the matter was taken even further, as serious efforts have been made to elucidate the Courts sources of confusion. 35 Moreover, it has been suggested that if under domestic law national courts lack the jurisdiction to grant interim measures, such courts would neither be empowered to provide provisional judicial protection of Community law rights, taking into account that in such a case. there would be no national legal obstacle to remove 36 It is respectfully submitted that the Court's pronouncement should not be read so narrowly. The Court had stated in paragraph 19 of its ruling that" it is for the national 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. Thus, the setting aside of the conflicting national legislation preventing the award of interim relief contained in the remaining paragraphs of the judgment nly becomes of secondary importance insofar as such setting aside merely constitutes a necessary step which has to be taken in order to allow the full realization of the po conferred upon national courts to ensure the legal protection of Community law rights. It is suffered remedia ble damage unless given such interim protection, does Community law either(a)oblige the nationalcourt to grant such interim protection of the rights claimed; or(b) give the court power to grant such interim protection of the rights claimed? the ude Para. 17 of the judgment reads: "It is clear from the information before the Court, and in particular from ment making the reference and, as described above, the course taken by the proceedings in the nationa courts before which the same case came at first and second instance 33 See A. G. Toth, loc. cit, p. 585, and Eleanor Sharpston op cit, p. 36 4 See D. Simon and A Barav(1990) Le droit communautaire et la suspension prov isoire des mesures nationales. Les enjeux de Affaire Factortame, RFDA 920, p. 594 See Lambros Papadias, loc cit, pp 153-193 See Clive Lewis(1996)Remedies and the Enforcement of European Community Law, London: Sweet &e Maxwell, p. 73
disregarded the wording of the question and reduced its scope, availing itself to answer: ‘... whether a national court which, 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 disapply that rule.’ The explanation given by the Court for adopting such changes lacks originality and the arguments are not very convincing.32 But leaving aside such an explanation and whatever other unexpressed reasons or constraints the Court may have had or encountered, it is obvious that the Court placed the question in a different framework and approached the matter in its own terms. In these circumstances, the Court achieved a significant degree of simplification of the issues raised by the House of Lords, which led it to conclude that a domestic law provision standing as an obstacle to the granting of interim protection by national courts must be set aside, instead of openly stating whether Community law obliges or empowers such courts to grant interim relief. The lack of a definition of the nature and scope of such jurisdiction prompted part of the doctrine to criticize the judgment.33 Perhaps it will be worth reviewing the reasoning of the Court from a different perspective, in order to ascertain whether such a criticism remains as wise as it may seem at first sight. Most of the academic attention devoted to Factortame has been mainly concentrated on the section of the judgment dealing with the setting aside of the conflicting national legislation preventing the award of the injunctions sought by the applicants. The essence of the problem raised by the House of Lords - as concluded categorically by some authors - was merely reduced to an already traditional supremacy issue.34 Departing from such an assumption, the matter was taken even further, as serious efforts have been made to elucidate the Court’s sources of confusion.35 Moreover, it has been suggested that if under domestic law national courts lack the jurisdiction to grant interim measures, such courts would neither be empowered to provide provisional judicial protection of Community law rights, taking into account that in such a case, there would be no national legal obstacle to remove.36 It is respectfully submitted that the Court’s pronouncement should not be read so narrowly. The Court had stated in paragraph 19 of its ruling that ‘it is for the national 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’. Thus, the setting aside of the conflicting national legislation preventing the award of interim relief contained in the remaining paragraphs of the judgment only becomes of secondary importance insofar as such setting aside merely constitutes a necessary step which has to be taken in order to allow the full realization of the power conferred upon national courts to ensure the legal protection of Community law rights. It is suffered irremediable damage unless given such interim protection, does Community law either (a) oblige the national court to grant such interim protection of the rights claimed; or (b) give the court power to grant such interim protection of the rights claimed?’ 32 Para. 17 of the judgment reads: ‘It is clear from the information before the Court, and in particular from the Judgment making the reference and, as described above, the course taken by the proceedings in the national courts before which the same case came at first and second instance . . .’ 33 See A. G. Toth, loc. cit., p. 585, and Eleanor Sharpston op. cit., p. 36. 34 See D. Simon and A. Barav (1990) ‘Le droit communautaire et la suspension provisoire des mesures nationales. Les enjeux de l’affaire Factortame, RFDA 920, p. 594. 35 See Lambros Papadias, loc. cit., pp. 153-193. 36 See Clive Lewis (1996) Remedies and the Enforcement of European Community Law, London: Sweet & Maxwell, p. 73