Avis juridique important

Order of the President of the Court of 29 January 1997. - J. Antonissen v Commission of the European Communities and Council of the European Union. - Appeal - Order of the President of the Court of First Instance on an application for interim measures - Payment by way of advance - Provisional nature. - Case C-393/96 P (R). European Court reports 1997 Page I-00441

Summary

1 Applications for interim measures - Provisional measures - Measures not expressly sought by the applicant - Discretion of the judge dealing with the application

(EC Treaty, Art. 186)

2 Applications for interim measures - Provisional measures - Conditions for granting - Prima facie case - Serious and irreparable damage - Discretion of the judge dealing with the application

(EC Treaty, Art. 186)

3 Applications for interim measures - Provisional measures - Main application seeking a finding of non-contractual liability on the part of the Community - Award of an advance - Right to complete and effective judicial protection - Whether permissible - Conditions - Balancing of all the interests involved - Granting of the measure to be envisaged restrictively

(EC Treaty, Arts 178, 186 and 215, second para.)

4 Both the question whether measures other than those expressly sought by the applicant should be envisaged and the question whether to hear oral argument from the parties are matters which fall within the discretion of the judge dealing with an application for interim measures.

Since the judge dealing with an interim application cannot be required to reply explicitly to all the points of fact and law raised in the course of the interlocutory proceedings, the same applies, a fortiori, in the case of provisional measures which have not been identified in the interim application.

5 It is open to the judge dealing with such an application to order interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable damage to the applicant's interests, it must be made and produce its effects before a decision is reached in the main action. Such an order must further be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.

In the context of that overall examination, the judge dealing with the application enjoys a broad discretion to determine the manner in which those various conditions are to be examined. That discretion must be exercised in the light of the specific circumstances of each case.

6 An absolute prohibition, irrespective of the circumstances of the case, on obtaining in the context of an interim application a measure granting (by way of advance) a part of the compensation claimed, on the basis of Article 178 and the second paragraph of Article 215 of the Treaty, in the main proceedings, and with a view to protecting the applicant's interests until judgment is delivered in those proceedings, would not be compatible with the right of individuals to complete and effective judicial protection under Community law, which implies in particular that interim protection be available to them if it is necessary for the full effectiveness of the definitive future decision. It is therefore not possible to rule out in advance, in a general and abstract manner, that payment, by way of an advance, even of an amount corresponding to that sought in the main application, may be necessary in order to ensure the practical effect of the judgment in the main action and may, in certain cases, appear justified with regard to the interests involved. In that regard, it is for the judge dealing with an application for such an interim measure to balance the applicant's interest in avoiding a deterioration of his financial position, which might lead to an irreversible cessation of his activities, against the risk that it might be impossible to recover the amounts sought if the main application were dismissed.

Recourse to such a type of measure, which is more likely than others to give rise in fact to irreversible effects, in particular in the event of the applicant's subsequent insolvency, must be restricted, and should be confined to cases where the prima facie case appears particularly strong and the urgency of the measures sought undeniable. None the less, such an assessment must be made in the light of the circumstances of each case. Where appropriate, if the balance appears to him to be in favour of granting the measure sought, the judge dealing with the interim application may still impose any condition or guarantee which he considers necessary when granting that measure, or limit its scope in any other way.