C-213/89

The questions are clear. Pending a ruling by the Court of Justice on the interpretation of 3. At first instance, the Divisional Court of provisions of Community law having direct the Queen's Bench Division made a effect, and where United Kingdom law does reference to the Court of Justice for a not permit the national court to suspend, by preliminary ruling on the interpretation of way of interim relief, the application of the the provisions of Community law raised allegedly conflicting national measure and and, as an interim measure, ordered the thus, provisionally, to acknowledge an indi- Secretary of State for Transport not to vidual's right claimed under Community law apply the new Act to the applicants pending but denied by national law: (1) must (or final judgment or further order of the court. may) the national court grant such relief on the basis of Community law, and (2) if so, applying what criteria? 4. T h e Secretary of State for Transport appealed against the order for interim relief which was set aside by the Court of Appeal 2. The dispute which gave rise to the on the ground that United Kingdom courts reference for a preliminary ruling concerns do not have the power to suspend, by way a considerable number of companies of interim relief, the application of statutes operating in the fisheries sector, which are or to grant an injunction against the Crown. incorporated under the laws of the United Kingdom but represent Spanish interests. These undertakings contest the validity under Community law of a United 5. The House of Lords, before which the Kingdom statute of 1988 which altered the matter was brought, confirmed that as a requirements for registration in the register matter of English law the courts have no of fishing vessels, in particular as regards power to suspend the application of an Act nationality and residence of the beneficial of Parliament on the ground of its alleged,

but unproven, incompatibility with 7. As a further preliminary matter, I think it Community law, and referred to the Court is appropriate to point out that the problem of Justice for a preliminary ruling the has arisen in the context of the special questions mentioned above, in order essen- proceedings by way of application for tially to ascertain whether that which is not judicial review provided for by English law permitted by English law is required or which were brought by the parties permitted by Community law. concerned even before the new Act on the register of shipping entered into force.

The consequences content. The problem arose, however, of the Court's ruling, whether favourable or because there was no certainty as to the unfavourable as regards the claim made by interpretation of the Community provisions the parties concerned, would then have been relevant to the circumstances, but rather applied to them retroactively. The House of there were 'serious arguments both for and Lords infers therefrom that, in such a case, against the existence of the rights claimed', 'the prosecution or forfeiture proceedings which prompted the Divisional Court to ask would not be frustrated but suspended' the Court of Justice to give a preliminary (page 13 of the order for reference). ruling on the interpretation of those provisions.

What is true, it seems to me, is that, for measure and the Act has also been amended present purposes, the difference is not of in that respect. ' any great importance. The mere stay of proceedings as a result of a reference to the Court of Justice pursuant to Article 177 of 1 — Order of 10 October 1989 in Case 246/89 R Commiiiion v United Kingdom [^il] ECR 3125. the EEC Treaty is not an interim measure

and does not satisfy any requirements of proceedings might in any event be 'frus- interim protection of the rights claimed. On trated'. the contrary, it unquestionably poses in more acute terms the very problem which necessitates interim protection: whether, if That is not to say that compensation for loss stayed, the proceedings may, precisely, be suffered is a decisive factor and constitutes a 'frustrated' by the delay in giving final real alternative to interim protection, in judgment. view of the fact that, even were it provided for, it would not always and in any event be

under Article 177, also to grant an interim tified the principles of Community law measure of the type requested by the whose interpretation by way of a appellants in this case and if, accordingly, it preliminary ruling by the Court would had the power provisionally to allow the enable it to resolve the problem, in one way ships to be registered on the basis of the old or another: the direct effect of the Act pending final judgment; as became clear Community provisions relied on, the obli- also at the hearing, this is plainly precluded gation to provide direct and immediate whether in judicial review proceedings or protection of individual rights, the practical any other type of proceeding. efficacy of judicial remedies, the obligation to refrain from applying national measures and/or practices which render the exercise of such rights and the protection afforded

2193, paragraph 9.

measures but also to final determinations this case, directly effective Community (see observations of the United Kingdom, at provisions are involved in the now uncon- pp. 13 and 20). tested sense of measures immediately conferring on individuals enforceable legal rights which, as such, may be relied upon before national courts. It is scarcely 10. The principles of Community law which necessary to emphasize that it is on that the House of Lords has stated to be relevant assumption that the questions have been and on whose interpretation its decision referred to the Court for a preliminary will depend are fundamental principles ruling, irrespective of which Community enshrined in numerous judgments of the provisions are involved and the correct Court. Those principles are however ob- interpretation thereof. In fact, it is not the served — and without difficulty — by the interpretation of the individual Treaty United Kingdom courts, with the sole reser- provisions relied on by the appellants in the vation which constitutes at once the reason dispute before the national court which is for and the subject of these proceedings. requested in these proceedings (merely for Are such principles also to be interpreted as the sake of clarity, I would remind the meaning that the national court must (or Court that Anieles 7, 52, 58 and 221 of the may) grant an interim measure requiring the Treaty are involved), but rather the inter- Crown to refrain from applying, during the pretation of the principles of Community proceedings on the substance of the case, a law mentioned above. In other words, the 'measure' (in this case an Act of Parliament) Court is not requested to embark upon an in respect of which there is no certainty but examination of the substance of the merely a suspicion, however serious, that it provisions relied on by the appellants, which is incompatible with Community law? In is the subject of other, and separate, other words, do the obligations which proceedings for a preliminary ruling, which Community law imposes on the national are, I repeat, also pending before the Court courts concerning the protection of rights (Case 221/89), but rather to give a general conferred directly on individuals also reply with regard to the interim protection include the requirement to order the of rights claimed by individuals by virtue of suspension, by way of interim protection, of directly effective Community provisions. the application of a national law which is alleged to be in conflict with Community law?

viduals by Community law' (judgment in States. That principle, which recurs in the Simmenthal, paragraph 16). And again in Court's case-law, is nevertheless based on a that judgment the Court affirmed that, in fundamental pre-condition, which is also view of the supremacy of Community law, derived from the second paragraph of the relevant provisions having direct effect Article 5, namely that the methods and 'not only by their entry into force, render national procedures must be no less automatically inapplicable any conflicting favourable than those applying to like provision of current national law,' but also remedies for the protection of rights 'preclude the valid adoption of new national founded on national provisions and must legislative measures to the extent to which also not be such as to render impossible in they would be incompatible with Com- practice 'the exercise of rights which the munity provisions' (judgment in Simmenthal, national courts are obliged to protect'. 4 paragraph 17).

4 — Judgments of 16 December 1976 in Case 33/76 Rewe v Landwirtschafikammer Saarland [1976] ECR 1989, paragraph 5, of 16 December 1975 in Case 45/76 Cornel v 14. Equally beyond dispute, and in Produktschap voor Siergewassen [1975] ECR 2043, para- graphs 15 and 16, of 10 July 1980 in Case 811/79 Ammin- harmony with the principle of collaboration istrazione delle finanze dello Stato v Ariete [1980] ECR enshrined in Article 5 of the Treaty, which 2545, paragraph 12, of 12 June 1980 in Case 130/79 Express Dairy Foods v Intervention Board for Agricultural is the real key to the interpretation of the Produce [1980] ECR 1887, paragraph 12, of 27 March whole system, is the fact that the methods 1980 in Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 25, of 27 February 1980 in Case 68/79 Just v and the machinery for protecting rights Ministry of Fiscal Affairs [1980] ECR 501, paragraph 25 and of 9 November 1983 in Case 199/82 San Giorgio conferred on individuals by provisions of [1983] ECR 3595, paragraphs 12 et seq. Community law are and remain, in the 5 — I would also cite the recent judgment of 21 September absence of a harmonized system of 1989 in Case 68/88 Commission v Greece [1989] ECR 2965, in which the Court reaffirms that 'Article 5 of the procedure, those provided for in the Treaty requires Member States to take all measures appro- priate to ensure the application and effectiveness of domestic legal systems of the Member Community law' (paragraph 23, provisional translation).

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FACTORTAME A N D OTHERS

The emphasis of this point should not appear superfluous merely because it recurs The problem arises from the fact that in a in the Court's case-law, since it is precisely structured and intricate context which a from this observation that I shall derive the modern system of judicial protection reply which I propose that the Court should demands there is a lack of contemporaneity give in this case. 7 — An analogous problem to the one before the Court was raised before numerous French courts when a new law on minimum prices for petrol (and also for books) was introduced which was not observed by some distributors who alleged that it was incompatible with Community law. Other traders objected to that attitude and sought interim prohibitory measures on the basis of the new law.

Kingdom. The question, therefore, does not référés et le droit communautaire', ibid, 1984, doct. 48). The French Court of Cassation has given its formal approval to this second approach (chambre commerciale, 15.5.1985, Gazette du Palais, 1985, 2, panor., pp. 346 and 6 — On morc than one occasion on which a reference has been 347), basing itself however on the judgment of the Court made to the Court in the context of an alleged conflia of Justice delivered in the meantime to the effect that the between a national provision (law or administrative act) contested law was incompatible (judgments of 10 January and Community law, the national court without hesitation 1985 in Case 229/83 Leden v Au Bli Vert [19851 ECR 1 granted interim measures as well, which in substance and of 29 January 1985 in Casc 231/83 Calle!

See also Court permit was ordered to be issued in Belgium (Case 363/89, of Cassation, 22.4.1986, Dalloz 1986, p. 242. pending).

between the two points in time which mark right. That is plainly true both where the the course of the law, namely the point establishment of the right entails an when the right comes into existence and the appraisal of the link between the factual point (later on) when the existence of the situation and the provision relied upon and right is (definitively) established. where the national court is called upon to determine the provision applicable from 17. T o compensate for the fact that these between two or more provisions, which may two points in time do not coincide there is a even be in confict. In the latter situation, first and general remedy. It is indeed true too, where the existence of the right may that only the definitive establishment of the also be established by means of a review of existence of the right confers on the right validity, the provision which will be fullness and certainty of content in the sense determined as the one applicable (in place of placing the right itself, and the means of another declared to be invalid or incom- whereby it may be exercised, finally beyond patible) was in reality so applicable at the dispute (res judicata in the substantive time when the application was made, sense); but it is also true that that effect is inasmuch as at that time what was lacking carried back to the point in time when the was only the establishment of the right's right was invoked by initiating the existence and not also its actual existence. procedure for judicial review. The effect of That has been specifically emphasized also the establishment of the existence of the by the Court, when it held that 'the inter- right, inappropriately but significantly pretation which, in the exercise of the juris- described as retroactive effect, is merely the diction conferred upon it by Article 177, the consequence of the function of the provision Court of Justice gives to a rule of and of its nature and modus operandi which Community law clarifies and defines where in fact gives rise to an enforceable legal necessary the meaning and scope of that right from the moment when the provision rule as it must be or ought to have been enters into force and for so long as it understood and applied from the time of its continues in force. The only possible delay coming into force'. 8 is that which may occur before the right

The procedure for judicial review which the need to have recourse to legal merely postpones the establishment of the proceedings to enforce a right should not existence of the right, that is to say its full occasion damage to the party in the right. and effective operation, to a later point in time and subject to the 'retroactivity' of the 8 — Judgment of 10 July 1980 in Case 826/79 Mirteo [1980] effects of the actual establishment of the ECR 2559, paragraph 7.

The requirement for interim protection, moreover, as has already been noted, arises 9 — See for example the order of 12 December 1968 in Case 27/68 Renkens [1969] ECR 274. See alio the Opinion of Mr Advocate in the same terms, both where the estab- General Capotorti in Joined Cases 24/80 and 97/80 R Commission v lishment of the right's existence involves the France [19801 ECR 1319, at p. 1337.

The necessary link between the effectiveness of judicial protection and interim relief was brought into focus, as is known, by Italian doctrine (Choivenda, the outcome of the application involves — Istituzioni di diritto processuale civile, I, Naples, 1933, No 12; also although the expression is not perhaps a Principi di diritto processuale civile, Naples, 1906, pp. 137 er seq; Calamandrei, Introduzione ilio studio sistematico dei provvedimenti happy one — 'the facts', and where it is a cautelari, Padua, 1936) and by German academic legai literature (Hedwig, System des deutschen Zivilprozeßrechts, Leipzig, 1913, II, question of choosing between two or more pp. 22 et seq).

('By means of interim measures the courts seek to make up valid or whether one is presumed to be for the law's delays in such a way that as far as possible the outcome of incompatible with the other, which is of a the proceedings is the same as if they could have been completed in one day') ; Decisions of the Tribunal, V, 455. See also the decision of the Bundesverfassungsgericht (Federal Constituüonal Court) of higher order or in any event has precedence. 19.6.1973 commented on in NJW 1973,34,pp. 1491 et seq ('Der Sinn dieses besonderen Verfahrens besteht darin, einen effektiven Gerichtsschutz gegenüber Maßnahmen der Exekutive zu sichern and

effective'). See, finally, Corte Costituzionale No 190 of 28.6.1985 to prior review of the validity or compatibility the effect that 'the principle must be respected whereby the duration of the proceedings should not occasion damage to the party who is right, of one provision vis-a-vis another of a the validity of which principle has been demonstrated from the beginning of this century notonly in Italian academic literatu re' {ľoro higher order or in any event having italiano, 1985, I, 1881).

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OPINION OF MR TESAURO — CASE C-213/89

precedence, the difference is merely one of to be irremediably impaired and there is a appearance, particularly when that review is suspicion (the degree of which must be entrusted to a court on which special juris- established) that the final determination may diction has been conferred for the purpose. entail a finding that the statute or adminis- This situation, too, is fully covered by the trative act in question is invalid. typical function of judicial proceedings, which seek to establish the existence of and hence to give effect to the right, so that the requirement that the individual's position be 21. In brief, the presumption that a law or protected on a provisional basis remains the an administrative act is valid may not and same, inasmuch as it is a question of deter- must not mean that the very possibility of mining, interpreting and applying to the interim protection is precluded where the case in question the relevant (and valid) measure in question may form the subject of a legal rules. final judicial review of its validity.

In fact, it is certain and undeniable that a 22. In a procedural situation of the type provision, whether it is contained in an Act with which we are concerned here, in which of Parliament or a Community act, or in an one provision is alleged to be incompatible administrative act, must be presumed to be with another of a higher order or having valid. But that cannot and must not mean precedence, ¿í ¿5 essential, as has already that the courts are precluded from tempo- been stressed, to hear in mind the fact that rarily paralysing its effects with regard to both provisions hypothetically apply to the the concrete case before them where, case in question from the moment when the pending a final determination on its validity application is made. That is especially so vis-à-vis or compatibility with a provision of since the final determination, whose conse- a higher order or having precedence, one or quences are made to take effect from the other of the legal rights in question is likely time of the application, creates nothing new

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FACTORTAME AND OTHERS

First of all, it is beyond dispute that the 11 — Bundesverfassungsgericht, 16.10.1977, Schleyer, in Foro application of an administrative act, which italiano, 1978, IV, p. 222; Bundesverfassungsgericht, 19.6.1962, in BVerfGE, Vol. 14, p. 153. however benefits from a presumption of 12 — Bundesverfassungsgericht, 5.10.1977, BVerfGE, Vol. 46, validity in the same way as a law, so that p. 43.

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OPINION OF MR TESAURO — C A S E C-213/89

I8 is possible to issue interim measures suspending the application of primary legis- lation — obviously with regard only to the parties to the proceedings — pending a ruling by the Constitutional Court. That court, although it has never decided the specific point which is before this Court, 1 5 24. If attention is now turned to the has not failed to affirm, on the one hand, relationship between national provisions and the essential role played by interim relief in Community provisions, there is no doubt ensuring the effectiveness of the system of that, by means of preliminary rulings given judicial protection 1 6 and, on the other hand, by the Court of Justice and the 'direct' the existence of a general principle and of a competence of national courts, machinery 'rule of rationality" underlying the legal has been introduced which essentially system according to which it is for the consists of the review of the validity (or courts, where the necessary pre-conditions of compatibility, if this is preferred) of are fulfilled (prima-facie case and periculum a national provision in relation to a in mora), to adopt such urgent measures Community provision, given that the as are appropriate for ensuring, on a national courts have jurisdiction to rule provisional basis, the effects of the final definitively that the former is incompatible decision on the merits. 17 with the latter. And if therefore the national courts may, indeed must, disapply a national law which conflicts with a Community 13 — Pretore, Bari, order of 4.2.1978, Foro italiano, 1978, I, provision having direct effect, once a 1807; Pretore, La Spezia, order of 29.3.1978, Foro italiano, definitive finding has been made to that 1979, I, 285; Pretore, Pisa, order of 30.7.1977, Foro italiano, 1977, I, 2354; Pretore, Pavia, order of 14.3.1977, effect (or, at any rate, must achieve that Riv. ¡iur. lav. 1977, II, 640; Pretore, Voltri, order of 1.9.1977, Äi», giur. Uv. 1977, II, 639; Pretore, La Spezia, substantive result), they must also be able to

zionale. Riv. dir. proc. 1985, pp. 124 et seq; Zagrebelsky, 'established' but may call for a preliminary 'La tutela d'urgenza', in Le garanzie giurisdizionali dei ruling by the Court of Justice. Otherwise, diritti fondamentali, Padua, 1988, pp. 27 et seq; Sandulli, Manuale di diritto amministrativo, Naples, 1984, II, that judicial protection of the rights p. 1408. conferred on individuals by the Community 15 — But see, with regard to the permissibility of interim provision which, as has been affirmed by the protection pending settlement of jurisdictional questions, Corte costituzionale N o 73 of 6.6.1973, foro italiano, Court on numerous occasions and also 1973, I, 1657; also Corte di Cassazione, Sezioni Unite, specifically pointed out by the House of 1.12.1978, N o 5678, Foro italiano, 1978, I, 2704. 16 — Corte costituzionale, 27.12.1974, N o 284, Foro italiano, Lords, is the subject of a precise obligation 1975, I, 263. on the part of the national courts, might be 17 — Corte costituzionale, 28.6.1985, N o 190, Foro italiano, 1985, I, 1881.

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FACTORTAME AND OTHERS

Para- review which can be carried out of the doxically, the right conferred (putatively) by compatibility of the English statute with the provision of Community law would as a Community law, to the 'certain' Community general rule receive less, or less effective, rule having direct effect, it must also be protection than rights conferred (also puta- able, where the necessary pre-conditions are tively) by the provision of national law. satisfied, to grant interim protection to the That would be tantamount to saying that rights claimed on the basis of 'uncertain' the right conferred by ordinary legislation Community rules and denied by the may receive interim protection, whereas provisions of national law. protection is denied to the right conferred by the Community, or in any event higher- ranking, provision, on the basis of the presumption of validity in favour of that legislation; as if the same presumption, The problem is not one of form but of which after all is nothing other than

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OPINION OF M R TESAURO —CASE C-213/89

27. Nor does it avail to put forward as a disapply one or the other. counter argument the presumption of validity which attaches to Community measures, a presumption stressed many times by the Court. That is an argument 29. In conclusion, the reply which I propose which ends up by demonstrating the should be given by the Court to the first contrary. It is scarcely necessary to recall to question put to it by the House of Lords mind Article 185 of the Treaty which is affirmative in the sense that, under expressly provides that the Court may 'if it Community law, the national court must be considers that circumstances so require, able to afford interim protection, where the order that application of the contested act pre-conditions are met, to rights claimed be suspended'. by an individual on the basis of provisions of Community law having direct effect, pending the final outcome of the proceedings, including proceedings on a

' 9 30. I need hardly add that such a reply does not amount to imposing remedies or judicial procedures different from those already 28. Similarly, it is not at the formal but provided for in the domestic law of the rather on the substantive level that it is Member States but merely implies that such necessary to assess the possibility that remedies or procedures must be used 'for interim protection may be obtained (also) by the purpose of ensuring observance of way of an injunction against the Crown. Community provisions having direct effect, By way of example, I would consider it on the same conditions concerning admissi- unreasonable to think in terms of an bility and procedure as would apply were injunction (to adopt a measure or enact it a question of ensuring observance of primary legislation) which would amount to national law'. 20 But I would recall once an interference with the discretionary again that the principle in question, powers enjoyed by the Crown or even by according to which the means of affording Parliament, whilst on the other hand I judicial protection to rights conferred by would regard it as being entirely reasonable provisions of Community law remain exclu-

sively those provided for by domestic law, Simmenthal case) of a procedural system does not apply if 'those rules and time-limits which makes it impossible in practice 'to made it impossible in practice to exercise exercise rights which the national courts rights which the national courts have a duty have a duty to protect'. That would be all to protect'. 21 the more serious if regard is had to the fact, also mentioned in the order for reference, that under the English legal system the definitive establishment of the right claimed never entails the recovery of losses suffered

relief requested). Consequently, it is not a justified basis for arguing a contrario (as in question here of a procedure which is not the observations of Ireland and the United provided for by the national legal system, Kingdom) that individuals are already rather it is simply a question of using the afforded sufficient protection by virtue of already existing procedure in order to the possibility open to the Commission, in protect a right claimed on the basis of a the context of infringement proceedings provision of Community law having direct brought under Article 169, to apply to the

paragraph 13. Gend & Loos [1963] ECR 1.

fail to include the provision of interim the United Kingdom, have long specified protection for the rights claimed, pending a the prima-facie case (however designated) final determination. and the periculum in mora as the two basic pre-conditions for interim protection. The accent may be placed on one or the other Moreover, the first question is whether according to the legal system in question, or Community law obliges the national court what is a prima-facie case may or may not to grant such interim protection or gives it perfectly coincide with the not manifestly the power to grant such protection, so that ill-founded or the prima-facie well-founded the second question as to the criteria which nature of the claim and so on, or it may be the national court should apply is dependent that in the assessment of the periculum in on a negative reply as to the obligation and mora, apart from the traditional and an affirmative reply as to the power. necessary balancing of the respective interests of the parties (it must be ensured that the same interim measure does not in Over and above the literal formulation of its turn cause irreparable damage to the the questions and the corresponding replies other party), express consideration is also to be given by the Court, I consider that it given to the public interest.

And there involved is a judicial activity which the is scarcely any need to point out that in national court is called upon to carry out considering whether there is a prima-facie and which, by its very nature, is an activity case the courts will take account of the involving an assessment of the factual and possibility that the national provision may legal elements presented by the specific case be declared incompatible with Community before the national court at any given time. law. Consequently, it is possible to use the expression Obligation', in accordance with In the result, as regards the second question the Court's case-law, in the sense that the in particular, I suggest that the Court national court performs that obligation by should give a reply which is in conformity means of an assessment on a case-by-case with the judgment in Comet in the sense basis of the pre-conditions on which that 'the methods and time-limits' of the generally the adoption of an interim interim protection are and remain, in the measure depends. absence of harmonization, those provided for by the national legal systems, provided that they are not such as to make it In this connection, I consider not only that impossible in practice 'to exercise rights it is for the national court, obviously, to which the national courts have a duty to determine whether the pre-conditions for protect'. interim protection are met, but also that, in the absence of Community harmonization, Consequently, it is for the national court to those pre-conditions must be and must draw from the above the necessary remain those provided for by the individual, inferences as to the determination of the

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FACTORTAME AND OTHERS

34. On the basis of the foregoing considerations, I therefore propose that the Court should reply as follows to the questions formulated by the House of Lords:

'(1) 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 pre-conditions 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.

(2) In the absence of Community harmonization, it is the legal system of each Member State which determines the procedural methods and the pre-conditions for the interim protection of rights vested in individuals by virtue of provisions of Community law having direct effect, on condition that those methods and pre-conditions do not make it impossible to exercise on an interim basis the rights claimed and are not less favourable than those provided for in order to afford protection to rights founded on national provisions, any provision of national law or any national piactice having such an effect being incompatible with Community law.'

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