Impact of ec law on national remedies

Although EC law does not in principle prescribe specific remedies and procedures to be adopted by national courts in actions based on EC law, the obligation to ensure that national remedies are effective, or sufficiently effective, to protect individuals' Community rights has on occasions required the modification of national law, even the provision of new remedies.

Interim relief

In R v Secretary of State for Transport, ex parte Factortame Ltd (case C-213/89) the Court held that English courts were obliged to provide interim injunctions against the Crown where there was no other means of protecting individuals' Community rights, even though, as the House of Lords had found in that case ([1990] 2 AC 85), no such remedy was available as a matter of national law. Following the ECJ's ruling, the House of Lords granted the requested relief ([1991] 1 AC 603 at 645).

In Zuckerfabrik Suderdithmarschen AG (cases C-143/88, 92/89) the ECJ laid down Community criteria for the granting of interim relief pending a ruling from the ECJ under Article 234 on the validity of a Community act, based on the principles applicable to the exercise of its own jurisdiction to grant such relief under Articles 242 and 243 EC. Relief should be granted only if the facts and legal circumstances are such as to persuade the court that:

(a) serious doubts exist about the validity of the Community measures on which the contested administrative decision is based;

(b) in cases of urgency, and

(c) to avoid serious and irreparable damage to the party seeking the relief.

Given that the granting of interim relief pending a ruling on the validity of Community law involved a new situation for national courts, and that the suspension of a Community act would have serious implications for the Community legal order, it is not surprising that the Court provided a common Community solution here. However, although it might have been desirable, in the interests of the coherence of legal remedies, to require national courts to apply the same criteria in a claim for interim relief pending a ruling on the interpretation of Community law, the Court is not now likely to do so. Thus, in this context, national procedural rules will continue to apply. It may be noted that in R v Secretary of State for Health, ex parte Imperial Tobacco Ltd (The Times, 16 November 1999, QBD) Turner J. considered it unnecessary to apply the criteria provided by the ECJ in Zucherfabrik Silderdith-marschen AG in a claim for an interim injunction to prevent the enactment of domestic regulations banning tobacco advertising pending a ruling from the ECJ on the validity of the directive on which the regulations were based. He preferred to apply the domestic criteria applicable to claims for interim relief, thereby 'avoiding the problem of the applicant having to prove that the damage that he would suffer in the absence of the grant of suspensory relief would be irreparable'. However, his justification, on the facts perhaps acceptable, was that in this case the date for implementation of the directive, 30 July 2001, had not yet been passed; thus an interim injunction would not have the effect of suspending the application of an existing EC obligation.