Avis juridique important

Order of the President of the Court of 25 June 1998. - Gouvernement des Antilles néerlandaises v Council of the European Union. - Appeal - Order of the President of the Court of First Instance in interlocutory proceedings - Association of the overseas countries and territories - Decision amending at mid-term the OCT Decision - Urgency. - Case C-159/98 P (R). European Court reports 1998 Page I-04147

Summary

1 Applications for interim measures - Suspension of operation of a measure - Decision to grant or refuse suspension likely to have irreversible effects - Balance of interests

(EC Treaty, Art. 185)

2 Appeals - Grounds of appeal - Incorrect assessment of facts - Inadmissible - Application in the case of an appeal against an interlocutory order

(EC Statute of the Court of Justice, Arts 50, second para., and 51)

3 Applications for interim measures - Suspension of operation of a measure - Conditions for granting - Serious and irreparable damage - Contested decision in breach of a Treaty provision - Criterion not automatically met

(EC Treaty, Art. 185)

4 Appeals - Grounds of appeal - Incorrect assessment of evidence - Inadmissible

(EC Statute of the Court of Justice, Art. 51)

5 Appeals - Grounds of appeal - Inadequate reasoning - Application in the case of an interlocutory order

(EC Statute of the Court of Justice, Art. 51)

6 Applications for interim measures - Interim measures - Conditions for granting - Serious and irreparable harm - Prima facie case - Application refused on the ground of lack of urgency and on the supererogatory ground of failure to establish a prima facie case - Consequences in the event of an appeal

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

7 In most interlocutory proceedings, the decision to grant or to refuse suspension of application of a measure as sought is likely to produce, to a certain extent, certain definitive effects, and it is for the judge hearing an application for interim suspension to weigh up the risks attaching to each of the possible solutions. Assessment of whether the suspension sought is provisional in nature thus cannot, in principle, be separated from that of the balance of interests.

8 Article 51 of the Statute of the Court of Justice, under which an appeal is limited to points of law and may lie only on grounds of lack of competence of the Court of First Instance, a breach of procedure before it or infringement of Community law by it, applies equally to appeals brought under the second paragraph of Article 50 of that Statute against decisions of the Court of First Instance given in interlocutory proceedings.

9 A breach, if any, of a Treaty provision by a Council Decision, whilst it may affect the validity of that decision, cannot in principle be sufficient on its own to establish that any damage caused is serious and irreparable and thereby fulfil one of the criteria for granting suspension of operation of the decision.

10 In an appeal, the Court of Justice does not in principle have jurisdiction to examine evidence which the Court of First Instance has accepted in support of its findings or assessments of the facts. Where the general principles of law and rules of procedure governing the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the weight to be attributed to the evidence produced.

11 A judge hearing an application for interim measures cannot be required to reply explicitly to all the points of fact and law raised in the course of the interlocutory proceedings. It is sufficient that the reasons given validly justify the order in the light of the circumstances of the case and enable the Court of Justice to exercise its powers of review.

12 Where an appeal is brought against an order dismissing an application for interim measures not only on the ground that no prima facie case had been made but also because the appellant had not established the existence of serious and irreparable harm such as to justify suspending application of the contested decision, so that the reasoning in the order under appeal relating to the issue of a prima facie case is supererogatory, a ground of appeal relating to the existence of a prima facie case, but which does not call into question the lack of urgency of the measures sought, cannot form grounds for setting aside, even partially, the order under appeal.