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.
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>
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
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.