Order — ECLI:EU:C:2013:848
Date: 2013-12-19
Language of the case: German
Court formation: Vice-President
Subject matter: Public health
Procedure: Action for annulment;Appeal;Application for interim measures - unfounded
Origin: Germany

Summary — Order of the Vice-President of the Court, 19 December 2013 1. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) 2. Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Prima facie examination of the grounds relied on in support of the action in the main proceedings — Action against a Commission decision rejecting the request of a Member State to maintain national provisions incompatible with EU law — Grounds enabling it to be established whether the conditions for granting the derogation sought are satisfied — Grounds not prima facie unfounded (Arts 114(4) TFEU and 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) 3. Application for interim measures — Interim measures — Conditions for granting — Serious and irreparable damage — Protection of public health — Precautionary principle — Taken into account by the judge hearing the application for interim measures (Art. 279 TFEU) 4. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Application to appeals directed against an order for interim measures (Art. 256 TFEU; Statute of the Court of Justice, Arts 57, second para., and 58) 5. Appeals — Grounds — Inadequate statement of reasons — Scope of the obligation to state reasons (Statute of the Court of Justice, Arts 36 and 53, first para.; Rules of Procedure of the General Court, Art. 81) 6. Public health — Approximation of laws — Legal basis — Adoption of harmonisation measures — Not included (Arts 114(3) TFEU and 168(1) and (5) TFEU) 1. See the text of the decision. (see para. 40) 2. The condition of a prima facie case is satisfied where there is, at the stage of the interim proceedings, a major legal disagreement whose resolution is not immediately obvious, so that the action is not prima facie without reasonable substance. Since the purpose of the interim proceedings is to guarantee that the final decision to be taken is fully effective, in order to avoid a lacuna in the legal protection, the court hearing the application for interim relief must restrict itself to assessing ‘prima facie’ the merits of the grounds put forward in the main proceedings in order to ascertain whether there is a sufficiently large probability of success of the action. As regards a decision of the Commission not to grant the request of a Member State, under Article 114(4) TFEU, seeking to obtain approval of the maintenance of national provisions incompatible with a harmonisation directive, the specific context of the procedure provided for in Article 114(4) TFEU and, inter alia, the fact that it is for the Member State to prove that the derogation which it requests is justified and the discretion which the Commission has in this respect are relevant for the purposes of the examination of whether there is a prima facie case. However, that relevance means only that the judge hearing the application for interim relief, in ascertaining whether the Member State requesting the adoption of an interim measure has submitted grounds which may, prima facie, establish that the Commission acted unlawfully, and consequently, that there is a prima facie case, must take account of the fact that it is for the Member State to establish, during the administrative proceedings, that the conditions for the grant of the derogation sought are satisfied. That relevance does not mean, by contrast, that the Member State is required to establish definitively, at the stage of the interim proceedings, that those conditions are fulfilled. Were the judge hearing the application for interim relief to adopt a position on that latter issue, he would be obliged to rule on an aspect of the merits of the main proceedings brought by the Member State concerned and would thereby exceed the limits of his own powers. (see paras 41-44) 3. Where the EU institutions, pursuant to the precautionary principle, may take measures for the protection of human health without having to wait until the reality and seriousness of risks to health become fully apparent, the judge hearing the application for interim relief does not commit any error of law in considering, for the purposes of his assessment of the likelihood of serious and irreparable damage, and subject to that of the weighing-up of interests, that the application, even provisionally, of values which might not be the most effective for the purposes of protecting human health and, specifically, children’s health, is sufficient to prove, with a sufficient degree of probability, the future occurrence of serious and irreparable damage. (see para. 54) 4. See the text of the decision. (see para. 56) 5. See the text of the decision. (see para. 66) 6. Article 168(5) TFEU excludes any harmonisation of laws and regulations of the Member States designed to protect and improve human health. Admittedly, harmonisation measures adopted on the basis of other provisions of primary law can have an effect on the protection of human health. The first subparagraph of Article 168(1) TFEU provides, moreover, that a high level of human health protection is to be ensured in the definition and implementation of all European Union policies and activities and Article 114(3) TFEU states that the European Parliament and the Council are to seek to achieve this objective in the exercise of their powers relating to the establishment of the internal market. Other provisions of primary law may not, however, be used as a legal basis in order to circumvent the express exclusion of harmonisation seeking to protect and improve human health. (see para. 75)