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 date: 01 January 2004
• DOI: http://doi.org/10.1111/j.1468-0386.2004.00202.x
• Date: 01 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.