Atlanta Fruchthandelsgesellschaft mbH and others v Bundesamt für Ernährung und Forstwirtschaft.
Date: 1995-11-09
15 In the order for reference the Verwaltungsgericht observes that in its judgment in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Suederdithmarschen and Zuckerfabrik Soest [1991] ECR I-415 the Court held that the coherence of interim legal protection of individuals requires that a national court which has made a reference to the Court of Justice for a preliminary ruling on the validity of a regulation should be able to order suspension of enforcement of a national administrative measure based on that regulation. It notes that the Court has not yet ruled, however, on the power of a national court in such circumstances to order interim measures which create a new legal position for the benefit of the person seeking legal protection. The Verwaltungsgericht suggests that the grant of such interim relief may call into question the full effectiveness of the regulation in all the Member States.
20 The Court held in Zuckerfabrik 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 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 request those courts to refer questions to the Court for a preliminary ruling (paragraph 16).
21 That right would be compromised if, pending delivery of a judgment of the Court, which alone has jurisdiction to declare a Community regulation invalid (see Case 314/85 Foto-Frost v Hauptzollamt Luebeck-Ost [1987] ECR 4199, paragraph 20), individuals were not in a position, where certain conditions are satisfied, to obtain a decision granting suspension of enforcement which would make it possible for the effects of the disputed regulation to be rendered inoperative as regards them (Zuckerfabrik, paragraph 17).
22 As the Court pointed out in Foto-Frost (paragraph 16), references for preliminary rulings on the validity of a measure, like actions for annulment, allow the legality of acts of the Community institutions to be reviewed. In the context of actions for annulment, Article 185 of the EC Treaty enables applicants to request enforcement of the contested act to be suspended 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 enforcement of a national administrative measure based on a Community regulation, the legality of which is contested (Zuckerfabrik, paragraph 18).
23 Furthermore, in its judgment in Case C-213/89 The Queen v Secretary of State for Transport, ex parte Factortame and Others [1990] ECR I-2433, delivered in a case concerning the compatibility of national legislation with Community law, the Court, referring to the effectiveness of Article 177, held that the national court which had referred questions of interpretation for a preliminary ruling in order to enable it to decide that issue of compatibility had to be able to grant interim relief and to suspend the application of the disputed national legislation until such time as it could deliver its judgment on the basis of the interpretation given in accordance with Article 177 (Zuckerfabrik, paragraph 19).
24 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 (Zuckerfabrik, paragraph 20).
25 The Court accordingly held in Zuckerfabrik that Article 189 is to be interpreted as not precluding national courts from suspending enforcement of a national administrative measure adopted on the basis of a Community regulation.
30 In the light of the above considerations, the answer to the first question must therefore be that Article 189 of the Treaty is to be interpreted as not precluding national courts from granting interim relief to settle or regulate the disputed legal positions or relationships with reference to a national administrative measure based on a Community regulation which is the subject of a reference for a preliminary ruling on its validity.
Question 2: The conditions for the grant of interim relief
33 Those conditions must be observed when a national court orders any interim relief, including a positive measure rendering the regulation whose validity is challenged provisionally inapplicable as regards the individual.
35 In Zuckerfabrik (paragraph 23) the Court held that interim measures may be adopted only if the factual and legal circumstances relied on by the applicants 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 grant of interim relief.
38 The Court further held in Zuckerfabrik (paragraph 24) that the grant of relief must retain the character of an interim measure. The national court to which the application for interim relief is made may therefore order interim measures and maintain them only for so long as the Court has not ruled that consideration of the questions referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of the regulation in question.
39 Since the power of national courts to order interim relief corresponds to the jurisdiction reserved to the Court of Justice by Article 186 in the context of actions brought under Article 173 of the Treaty, those national courts may grant such relief only on the same conditions as apply when the Court of Justice is dealing with an application for interim measures (Zuckerfabrik, paragraph 27).
40 In that respect the Court held in Zuckerfabrik (paragraph 28), on the basis of settled case-law, that interim measures may be ordered only where they are urgent, that is to say, where it is necessary for them to be adopted and take effect before the decision on the substance of the case, in order to avoid serious and irreparable damage to the party seeking them.
41 As to urgency, the damage relied on by the applicant must be such as to materialize before the Court of Justice has been able to rule on the validity of the contested Community act. As 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 with respect to which the application for interim relief is made 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 (Zuckerfabrik, paragraph 29).
42 Furthermore, 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 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 interest of the Community, namely that such regulations should not be set aside without proper guarantees (Zuckerfabrik, paragraph 30).
43 In order to comply with that obligation, the national court to which an application for interim relief has been made must first examine whether the Community act in question would be deprived of all effectiveness if not immediately implemented (Zuckerfabrik, paragraph 31).
44 In that respect the national court must take account of the damage which the interim measure may cause the legal regime established by that regulation for the Community as a whole. It must consider, on the one hand, the cumulative effect which would arise if a large number of courts were also to adopt interim measures for similar reasons and, on the other, those special features of the applicant' s situation which distinguish him from the other operators concerned.
45 If the grant of interim relief represents 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 (Zuckerfabrik, paragraph 32).
51 Accordingly, the answer to the second question put to the Court by the Verwaltungsgericht Frankfurt am Main must be that interim relief, with respect to a national administrative measure adopted in implementation of a Community regulation, can be granted by a national court only if:
(1) that court entertains serious doubts as to the validity of the Community act and, if the validity of the contested act is not already in issue before the Court of Justice, itself refers the question to the Court of Justice;
(2) there is urgency, in that the interim relief is necessary to avoid serious and irreparable damage being caused to the party seeking the relief;
(3) the court takes due account of the Community interest; and
(4) in its assessment of all those conditions, it respects any decisions of the Court of Justice or the Court of First Instance ruling on the lawfulness of the regulation or on an application for interim measures seeking similar interim relief at Community level.