INTERIM MEASURES IN EC LAW:
Towards a Complete and Autonomous System of Provisional Judicial Protection before National Courts?

Sergio Ariel Apter

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.

Cite as: Sergio Ariel Apter, Interim Measures in EC Law: Towards a Complete and Autonomous System of Provisional Judicial Protection before National Courts?, vol 7.2 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (June 2003), <http://www.ejcl.org/72/art72-1.html>

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
3.1 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
Notes
Bibliography

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