Order of the President of the Court of 17 December 1998. - Emesa Sugar (Free Zone) NV v Commission of the European Communities. - Appeal - Order of the President of the Court of First Instance in proceedings for interim measures - Urgency - Undeniable urgency - Assessment of evidence. - Case C-363/98 P (R).



European Court reports 1998 Page I-08787



Summary



Keywords

1 Appeals - Cross-appeal by the successful party against a decision dismissing an application for interim measures as unfounded rather than as inadmissible - Appeal dismissed

(EC Statute of the Court of Justice, Art. 49)

2 Applications for interim measures - Suspension of operation of a measure - Provisional measures - Conditions for granting - Prima facie case - Serious and irreparable damage - Assessment to be made by the court hearing an application for interim measures

(EC Treaty, Arts 185 and 186; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of Procedure of the Court of First Instance, Art. 104(2))

3 Applications for interim measures - Suspension of operation of a measure - Conditions for granting - Urgency - Cumulative nature - Determined solely on the basis of the discretion enjoyed by the Community institution - Not permissible

(EC Treaty, Arts 185 and 186; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of Procedure of the Court of First Instance, Art. 104(2))

Summary

1 Where, following proceedings for interim relief in which the Court of First Instance has upheld the request of the defendant which, although not formally contending that the application was inadmissible, sought to obtain a decision refusing the measures applied for, a cross-appeal is brought by that party, seeking to have the order set aside solely on the ground that the refusal of the interim measures - the form of order sought by the defendant - was not based on the inadmissibility of the application, such a cross-appeal must be rejected.

2 It is open to the judge hearing an application to order the suspension of the operation of an act, or other interim measures, only if it is established that such an order is justified prima facie in fact and in law and that it is urgent in that, in order to avoid serious and irreparable damage to the applicant's interests, it must be made and produce its effects before the decision is given in the main proceedings. Such an order must further be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralise in advance the effects of the decision subsequently to be given in the main action.

In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed and assessed.

3 Although it is true that, since the conditions for suspension of operation or for any other interim measure are cumulative, an application for interim relief may properly be dismissed on the single ground that the condition of urgency is not satisfied, the court hearing an application for interim measures may not, in the context of an examination confined to the issue of the urgency of the measures sought, establish as a condition for the grant of an interim measure that a connection between the existence of a power of assessment vested in the institution concerned and the degree of urgency must be proved.

Specifically, although the fact that the institution has such a power of assessment may be a relevant factor in the analysis of the degree of urgency in the context of balancing the interests involved and the requirement of manifest urgency, in conjunction with a particularly strong prima facie case, may be justified by the nature of the interim measure sought or the effects which it may produce, the mere fact that a discretionary power is vested in the author of the contested act cannot in itself, in the absence of any consideration whether there is a prima facie case and of any balancing of the interests involved, determine the requirements relating to the condition of urgency.