Interim Measures as Constitutional Instruments in the Jurisprudence of the CJEU

https://doi.org/10.63189/FQVO6041

Early Evolution: From Procedural Ancillarity to the Interests of European Law

Interim measures have traditionally occupied a modest yet indispensable place within procedural law. They remained fundamentally ancillary in nature, serving as temporary procedural safeguards that protect the (individual) interests of litigants pending adjudication on the merits. Their main objectives have been to preserve the effectiveness of judicial proceedings by the time they were delivered. With the proliferation of international courts during the second half of the twentieth century, international adjudication embraced this fundamental conception of interim measures and cautiously evolved this institution.^[1] Various international courts

Interim measures within European law emerged from similar conceptual foundations. Currently, Articles 278 and 279 TFEU authorize the suspension of contested acts and permit the CJEU to prescribe necessary interim measures. Initially, these provisions were conceived within the traditional framework of procedural protection, according to which interim relief served to ensure that final judgments would not be rendered ineffective. The early jurisprudence of the CJEU established the classical requirements governing interim relief, namely fumus boni juris, urgency, and the balancing of interests. Accordingly, the applicant had to demonstrate that the claim was not manifestly unfounded, that serious and irreparable harm would arise absent intervention, and that the balance of interests favored the granting of interim protection.

At the same time, however, even the early jurisprudence of the CJEU included broader interests of the EU. For example, in Atlanta,^[2] the Court emphasized that national courts considering interim relief against EU measures must take into account the interests of the Union as a whole, including the uniform application of European law and the stability of common policies. Interim relief therefore could not undermine systemic interests of the European integration process.

The early jurisprudence of the CJEU laid the foundation for an understanding of interim measures that transcended a purely procedural function and reflected the unique structure of the European legal order, largely shaped by the CJEU. Unlike classical international law, EU law is characterized, inter alia, by the principles of direct effect and primacy, as well as by the CJEU’s monopoly over the interpretation of EU law that all support its autonomy. Within such a legal order, interim measures have progressively evolved beyond the logic of classical international adjudication, assuming a function aimed at safeguarding both the autonomy of EU law and the effectiveness of judicial review.

Factortame and the Breakthrough to Constitutionalization

The constitutional dimension and significance of interim measures became unmistakable in the landmark Factortamelitigation in the early 1990s.^[3] The case concerned British legislation that prevented national courts from granting interim relief against Acts of Parliament, even where those acts conflicted with EU law. The CJEU held that national courts must possess the power to grant interim relief necessary to secure the full effectiveness of EU law. As the case clearly demonstrates, the CJEU began to broaden both the subject matter and the range of interim measures available. As a result, interim relief could be sought even in relation to national legislation, with a view to ensuring the full effectiveness (effet utile) of EU law before national courts.

Interim measures ceased to be merely procedural devices protecting litigants and became instruments through which the autonomy and effectiveness of EU law were guaranteed. National procedural autonomy had to yield where necessary to ensure effective judicial protection under EU law. In this way, the CJEU transformed provisional protection into a mechanism safeguarding the authority of the European legal order itself against national regulation. Factortametherefore marked a decisive constitutionalization of interim relief which evolved alongside a broader transformation of European law in the aftermath of the Maastricht Treaty. This transformation broadened both the objectives and the subject matter of European integration, while shared European values gradually supplanted economic and market considerations as the primary rationale underlying the authority and autonomy of European law.

These developments laid the groundwork for the recent jurisprudence of the CJEU, in which interim measures have been instrumentalized to safeguard the values and commitments underpinning the European legal order.

Interim Relief as a Measure of Systemic Constitutional Protection

This shift is particularly visible in recent infringement proceedings concerning the rule of law and judicial independence. In this way, interim measures have been instrumentalized to safeguard a European constitutional architecture. The 2020 interim measures order in Commission v Poland represented this development.^[4] The European Commission challenged reforms affecting the Polish judiciary, arguing that the Disciplinary Chamber of the Supreme Court undermined judicial independence and therefore violated Article 19(1) TEU. The Vice-President of the CJEU ordered the immediate suspension of the relevant national provisions. What transformed the constitutional significance of the case was the CJEU’s reasoning concerning irreparable harm. Traditionally, irreparable harm had often been conceived in economic or individualized terms. However, in Commission v Poland, the Court reconceptualized the notion. Damage to judicial independence itself was deemed irreparable because it threatened the proper functioning of the EU legal order as a whole. According to the reasoning of the CJEU, the operation of the Disciplinary Chamber risked causing systemic harm to the EU judicial system and undermining the effectiveness of future judgments. Therefore, the CJEU no longer focused principally on the rights of particular judges or litigants. Instead, the protected interest became systemic and constitutional in nature. The danger identified by the CJEU was the erosion of the EU judicial system and the weakening of the preliminary reference mechanism upon which the European legal order depends.

The subsequent proceedings against Poland further consolidated this approach. The CJEU granted interim measures suspending additional judicial reforms and later imposed periodic penalty payments for non-compliance.^[5] This development was remarkable not only because of the subject matter involved, but also because of the strengthening of enforcement mechanisms at the interim stage. Traditionally, financial sanctions under Article 260 TFEU were associated with the post-judgment phase of infringement proceedings. However, by attaching coercive penalty payments to interim measures themselves, the CJEU significantly enhanced the practical force of provisional judicial protection.

            The same tendency appeared in environmental litigation. In the Turów mine case, the CJEU ordered the suspension of mining activities due to environmental concerns and breaches of EU environmental law.^[6] The CJEU prioritized the prevention of irreversible environmental damage over arguments concerning economic hardship and energy security. Again, the protected interests were not merely individual. The CJEU acted to preserve systemic objectives of the EU embedded within the constitutional framework of EU law. These systemic questions increasingly emerged as constitutional interests capable of justifying immediate judicial intervention.

Conclusion

The expansion and transformation of the characteristics and objectives of interim measures closely align with the broader evolution and consolidation of the autonomy of European law. Recent jurisprudence of the CJEU demonstrates the increasing instrumentalization of interim measures to safeguard the European legal order, particularly in light of the principles of effective judicial protection and effet utile. The CJEU has repeatedly emphasized that encroachments upon judicial independence within Member States threaten not only domestic constitutional structures but also the functioning of the Union legal order itself. Since national courts simultaneously act as European courts, any weakening of judicial independence in a single Member State jeopardizes the effectiveness and uniform application of EU law throughout the European Union. In this sense, interim relief preserves the authority of EU law in moments of institutional crisis and protects the practical effectiveness of constitutional principles before irreversible damage occurs.

            Yet such “constitutionalization” of interim measures also generates some pitfalls. On the one hand, it can lead to a concentration of judicial power since the interim measures before the CJEU are generally decided by the President or Vice-President of the Court. Decisions of immense constitutional and political significance, such as suspensions of legislation, halting of judicial reforms, and the imposition of penalty payments may therefore emerge through highly centralized procedures and under conditions of urgency. On the other hand, once a systemic constitutional harm becomes sufficient to justify interim intervention, judicial discretion expands considerably since this concept is also inherently broad and open-textured. Without clear limiting principles, interim measures risk evolving into instruments of generalized constitutional supervision.

            The future of constitutionalized interim measures within EU law will therefore depend on whether they can be rendered more balanced and institutionally sustainable. Possible avenues for reform include the involvement of judicial chambers rather than a single judge, the introduction of limited appellate oversight, and the strengthening of proportionality and foreseeability through clearer doctrinal thresholds governing constitutional urgency and irreparable harm.

            Ultimately, the further evolution of interim relief will depend on the CJEU’s ability to reconcile the imperative of safeguarding the EU legal order with the equally fundamental demands of procedural clarity and judicial restraint. The resolution of this tension may well shape the next stage in the constitutional evolution of the European Union itself. 

^[1] Bederman, D.J. (2002) The Spirit of the Laws. Athens: University of Georgia Press.

^[2] Atlanta Fruchthandelsgesellschaft mbH and others v Bundesamt für Ernährung und Forstwirtschaft (Case C-465/93), Judgment of the Court of 9 November 1995, ECLI:EU:C:1995:369, [1995] ECR I-3761.

^[3] The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others (Case C-213/89), Judgment of the Court of 19 June 1990, ECLI:EU:C:1990:257, [1990] ECR I-2433.

^[4] Order of the Court (Grand Chamber) of 8 April 2020 in European Commission v Republic of Poland, Case C-791/19 R (Interim relief – Article 279 TFEU –Application for interim measures

^[5] The 27 October 2021 Order of the Vice-President of the Court of Justice (Case C-204/21 R) ordered Poland to pay the European Commission a daily penalty of €1 million.

^[6] Order of the Vice‑President of the Court in Czech Republic v. Republic of Poland (Case C‑121/21 R, Interim relief – Article 279 TFEU – Application for interim measures – Environment – Lignite mining activities at an open‑cast mine – Turów lignite mine (Poland)), Order of 21 May 2021, ECLI:EU:C:2021:420.

References

The Spirit of the LawsBederman, D.J. (2002) The Spirit of the Laws. Athens: University of Georgia Press.

Atlanta Fruchthandelsgesellschaft mbH and others v Bundesamt für Ernährung und ForstwirtschaftAtlanta Fruchthandelsgesellschaft mbH and others v Bundesamt für Ernährung und Forstwirtschaft (Case C-465/93) [1995] ECR I-3761, ECLI:EU:C:1995:369.

The Queen v Secretary of State for Transport, ex parte Factortame Ltd and othersThe Queen v Secretary of State for Transport, ex parte Factortame Ltd and others (Case C-213/89) [1990] ECR I-2433, ECLI:EU:C:1990:257.

European Commission v Republic of PolandEuropean Commission v Republic of Poland (Case C-791/19 R), Order of the Court (Grand Chamber) of 8 April 2020, ECLI:EU:C:2020:277.

European Commission v Republic of PolandEuropean Commission v Republic of Poland (Case C-204/21 R), Order of the Vice-President of the Court of 27 October 2021, ECLI:EU:C:2021:878.

Czech Republic v Republic of PolandCzech Republic v Republic of Poland (Case C-121/21 R), Order of the Vice-President of the Court of 21 May 2021, ECLI:EU:C:2021:420.