Provisional Court Protection in Administrative Disputes in Europe: The Constitutional Status of Interim Measures Deriving from the Right to Effective Court Protection. A Comparative Approach

Published date01 January 2004
Date01 January 2004
Provisional Court Protection in
Administrative Disputes in Europe: The
Constitutional Status of Interim Measures
Deriving from the Right to Effective Court
Protection. A Comparative Approach
Susana de la Sierra*
Abstract: Interim protection in remedies against the public administration has proved to
be one of the key issues in today’s justice. In effect, the slowness of judicial proceedings
means that f‌inal judicial decisions cannot guarantee the rights and interests of the liti-
gants any more, because those decisions arrive too late. Thus, effective judicial protection
is at stake. On the other hand, public administrations have traditionally disposed of priv-
ileges,one of the most important of them being the so-called executive character of admin-
istrative acts. The national debate on the equilibrium between both principles—effective
judicial protection and the executive character of administrative acts—needs to be
exported to the Community law context. Community law should therefore learn from
national experiences, as other legal orders, such as the Spanish one, have done, turning to
comparative law in order to improve their own model of interim protection.
I Introduction
The different legal mechanisms available to mitigate the effects of the most serious
problem faced by legal systems today—the slowness of justice—are collectively referred
to by the term interim protection (‘summary proceedings’, ‘provisional orders’).
‘Instant’ responses need to be found to the problem of the slowness of judicial pro-
ceedings, which has particularly negative ramif‌ications from an economic, political and
social perspective. In administrative disputes, as we already know, the issue has come
to a head rather late in the day, because the public authorities have always enjoyed a
privileged position in traditional litigation (the privilege of executory decisions).
Nonetheless, the development of social rights, the increasing importance of funda-
mental rights (particularly in relation to procedural rights), and sociological issues
relating to the acceleration of time in life have brought about the development of such
instruments in the majority of national and international legal systems. Moreover, the
use of interim measures has changed signif‌icantly since they were f‌irst introduced,
partly because they have had to adapt to changes to the very notion of administrative
European Law Journal, Vol.10, No. 1, January 2004, pp. 42–60.
© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
*LL. M. (Bayreuth, Germany),Doctoral Researcher at the European University Institute (Florence,Italy).
law, and more particularly, as a result of the evolution of the concept of the State. In
the new State model, which embodies the effects of industrialisation, as well as the more
recent restructuring of public authorities, public interest suffers from an inability to
identify precisely what makes disputes between the State and the individual strongly
casuistic and their classif‌ication complicated. This evolution has also taken place in the
European Community since its establishment.
The question of the presence of interim measures in a European system of justice is
of particular relevance to the case law of the Court of Justice of the European Com-
munities, which began with the Factortame1case, and was followed by the Zuckerfab-
rik2and Atlanta3cases. Several research inquiries have been conducted into this case
law: our inquiry focuses in particular on the demands made by the Court of Justice on
domestic judges in their role as Community judges actively enforcing the interim pro-
tection framework developed by the Court of Justice and Court of First Instance, in
cases where appeals are admitted directly. This model must be compared with national
systems, in order to become more familiar with the elements that could be used for the
creation of a ‘European administrative law’ on this subject. If we consider adminis-
trative law as the body of law that gives effect to constitutional law, then the starting
point for our inquiry lies in the determination of the constitutional basis of this estab-
lished practice itself.4As is the case with domestic law, this basis in Europe corresponds
to the conf‌lict arising between goods, interests, or different values: in current debate
focusing on the future of Europe, mention should be made of the fact that the interim
measures come into play in the conf‌lict arising between the need to guarantee the effec-
tiveness of law (especially in administrative law, of which a very considerable part today
derives from Community law) and the effectiveness of rights, in other words, the rela-
tionship between the power of public authorities and the rights of citizens.5
This inquiry therefore seeks to contribute to the determination of the constitutional
status of interim measures in a European context, by comparing different legal systems:
the French, German, and Spanish legal systems, as well as Community law and the law
of the Council of Europe. We shall commence with several introductory comments relat-
ing to terminology and methodology. Thereafter, we shall focus on the central tenet of
our thesis: identifying the constitutional basis of interim measures deriving from the
right to effective judicial protection. Lastly, we shall present the model for interim
January 2004 Provisional Court Protection in European Administrative
© Blackwell Publishing Ltd. 2004 43
1Decision of 19 June 1990, The Queen v Secretary of State for Transport, ex parte Factortame Ltd et al.,
Case 213/89, Rec. 1990, I-02433.
2Decision of 21 February 1991, Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest/Hauptzollamt
Itzehoe and Hauptzollamt Paderborn,Cases C-143/88 and C-92/89, Rec. 1991, p. I-415.
3Decision of 9 November 1995, Atlanta Fruchthandelsgesellschaft mbH et al. (I) v Bundesamt für Ernährung
und Forstwirtschaft,Case C-465/93, Rec. 1995, p. I- 3761.
4As Professor S. Floglaïtis wrote in 1996,‘today, the most important issue to be taken into consideration,
is to know whether the constitutional requirement, to the extent that it exists in a considerable number of
States, and is imposed by the case law deriving from the Factortame case before the European Court of
Justice, whereby legal protection is available for everybody, has been totally satisf‌ied’. See S. Flogaïtis,
Mesures conservatoires et effet suspensif dans la procédure administrative,in K. Kerameus (ed.), General
reports presented at the XIVth International Conference on Comparative Law (Athens, 31 July–6 August
1994),(Kluwer Law International, 1996), 735 et seq,at 746.
5This statement must be qualif‌ied in the light of what has already been stated at the outset.In fact, author-
ities do not only have police powers at their disposal, they are also in charge, as is well known,of the poli-
cies required by the principle developing social rights.This perspective, in which public interest and private
interests are sometimes diff‌icult to separate,and where public interests often have competing aims, is one
of the elements that will be taken into consideration in more detail later in our research.

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