14.

The second judgment was that in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest. ( 14 ) The case concerned a Council regulation requiring sugar manufacturers to pay a special levy. A German sugar manufacturer who had been required to pay a levy of some DM 2 million referred the demand to a national court claiming that the regulation was void and at the same time requested the suspension of the enforcement of the demand for the levy. The national court complied with the request and referred to the Court of Justice questions for a preliminary ruling on the one hand as to the validity of the regulation in question and on the other whether Article 189 of the Treaty precluded a national court from suspending the application of a national administrative measure based on a regulation and under what conditions such suspension might be granted. The Court declared that ‘the provisions of the second paragraph of Article 189 of the Treaty cannot constitute an obstacle to the legal protection which Community law confers on individuals. In cases where national authorities are responsible for the administrative implementation of Community regulations, the legal protection guaranteed by Community law includes the right of individuals to challenge, as a preliminary issue, the legality of such regulations before national courts and to induce those courts to refer questions to the Court of Justice for a preliminary ruling. That right would be compromised if, pending delivery of a judgment of the Court, ... individuals were not in a position, where certain conditions are satisfied, to obtain a decision granting suspension of application which would make it possible for the effects of the disputed regulation to be rendered for the time being inoperative as regards them. ... In the context of actions for annulment, Article 185 of the EEC Treaty enables applicants to request suspension of the application of the contested act and empowers the Court to order such suspension. The coherence of the system of interim legal protection therefore requires that national courts should also be able to order suspension of application of a national administrative measure based on a Community regulation, the legality of which is contested.’ ( 15 ) The Court further referred to the judgment in Case C-213/89 Factortame and Others, previously cited, and declared: ‘The interim legal protection which Community law ensures for individuals before national courts must remain the same, irrespective of whether they contest the compatibility of national legal provisions with Community law or the validity of secondary Community law, in view of the fact that the dispute in both cases is based on Community law itself.’ ( 16 ) On those grounds the Court declared that ‘... Article 189 of the Treaty has to be interpreted as meaning that it does not preclude the power of national courts to suspend the application of a national administrative measure adopted on the basis of a Community regulation’. ( 17 ) With regard to the conditions for suspension of enforcement the Court declared that ‘... interim measures suspending enforcement of a contested measure may be adopted only if the factual and legal circumstances relied on by the applicant are such as to persuade the national court that serious doubts exist as to the validity of the Community regulation on which the contested administrative measure is based. Only the possibility of a finding of invalidity, a matter which is reserved to the Court, can justify the granting of suspensory measures. It should next be pointed out that suspension of application must retain the character of an interim measure. The national court to which the application for interim relief is made may therefore grant a suspension only until such time as the Court has delivered its ruling on the question of validity. Consequently, it is for the national court, should the question not yet have been referred to the Court of Justice, to refer that question itself, setting out the reasons for which it believes that the regulation must be held to be invalid.’ ( 18 ) ‘Since the power of national courts to grant such a suspension corresponds to the jurisdiction reserved to the Court of Justice by Article 185 in the context of actions brought under Article 173, those courts may grant such relief only on the conditions which must be satisfied for the Court of Justice to allow an application to it for interim measures. In this regard, the Court has consistently held that measures suspending the operation of a contested act may be granted only in the event of urgency, in other words, if it is necessary for them to be adopted and to take effect before the decision on the substance of the case, in order to avoid serious and irreparable damage to the party seeking them. With regard to the question of urgency, it should be pointed out that damage invoked by the applicant must be liable to materialize before the Court of Justice has been able to rule on the validity of the contested Community measure. With regard to the nature of the damage, purely financial damage cannot, as the Court has held on numerous occasions, be regarded in principle as irreparable. However, it is for the national court hearing the application for interim relief to examine the circumstances particular to the case before it. It must in this connection consider whether immediate enforcement of the measure which is the subject of the application for interim relief would be likely to result in irreversible damage to the applicant which could not be made good if the Community act were to be declared invalid. It should also be added that a national court called upon to apply, within the limits of its jurisdiction, the provisions of Community law is under an obligation to ensure that the full effect is given to Community law and, consequently, where there is doubt as to the validity of Community regulations, to take account of the interests of the Community, namely that such regulations should not be set aside without proper guarantees. In order to comply with that obligation, a national court seised of an application for suspension must first of all examine whether the Community measure in question would be deprived of all effectiveness if not immediately implemented. If suspension of application is liable to involve a financial risk for the Community, the national court must also be in a position to require the applicant to provide adequate guarantees, such as the deposit of money or other security.’ ( 19 ) In the operative part of the judgment the Court accordingly stated that ‘Article 189 of the EEC Treaty must be interpreted as meaning that it does not preclude the power of national courts to suspend the application of an administrative measure adopted on the basis of a Community regulation’ and that ‘Suspension of enforcement of a national measure adopted in implementation of a Community measure may be granted by a national court only if that court entertains serious doubts as to the validity of the Community measure and, should the question of the validity of the contested measure not already have been brought before the Court of Justice, itself refers that question to the Court of Justice, if there is urgency and a threat of serious and irreparable damage to the applicant and if the national court takes due account of the Community's interests’.