Interim Measures of European Courts in a Comparative Perspective

https://doi.org/10.63189/METI1811

Introduction

Interim measures represent one of the longstanding cornerstone procedural instruments available to domestic courts seeking to ensure the effectiveness of judicial protection. These measures, which allow courts to intervene before the final resolution of a dispute, are designed to prevent irreparable harm and preserve the rights at stake until a judgment on the merits is delivered. Although their origins lie deep within the Western legal tradition—traceable to Roman law and the praetorian instruments used to secure provisional protection—their contemporary significance has expanded considerably, first within domestic systems and subsequently in international adjudication.

In the international legal order, interim measures serve a particularly delicate function, as courts operate in a decentralized environment characterized by state sovereignty, voluntary compliance, and limited enforcement mechanisms. Against this background, different international courts, based on their respective charters, have developed distinct approaches to interim relief.

This article examines the evolution of interim measures from a comparative perspective, focusing on the jurisprudence of the Court of Justice of the European Union (CJEU) in relation to the practices of the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR). While these judicial bodies share a common procedural objective—namely, protecting rights and preserving the effectiveness of judicial proceedings—their institutional contexts have led to significant divergences in doctrine and practice. The article argues that the CJEU has developed an increasingly constitutional conception of interim relief, transforming it from a purely procedural safeguard into a central instrument for protecting the structural foundations of the European Union legal order.

Interim Measures in International Adjudication: A Comparative Perspective

Since international adjudication is based primarily on consent and enforcement mechanisms are limited, interim measures have historically developed cautiously and in gradual steps. The early jurisprudence of the ICJ and its predecessor illustrates this incremental approach, which has also influenced treaty-making and the practices of other courts. The Statute of the Permanent Court of International Justice (PCIJ) did not expressly regulate provisional measures; nevertheless, the PCIJ recognized an inherent power to indicate them in order to prevent irreparable harm to the parties’ rights. This teleological interpretation was later codified in Article 41 of the ICJ Statute, which authorizes the Court to indicate provisional measures when necessary.

For decades, however, the binding nature of such measures remained contested, as many viewed Article 41 as granting the ICJ merely recommendatory authority. This debate was ultimately resolved in the landmark LaGrand judgment of 1999, in which the ICJ held—partly drawing on the practice of the CJEU—that provisional measures are legally binding. Following this decision, requests for provisional measures before the ICJ increased significantly, particularly in high-profile disputes involving issues such as genocide allegations, territorial sovereignty, and armed conflict.

In parallel, and partly in response to these developments, regional courts also established their own approaches to interim relief. The ECtHR, for instance, gradually recognized the binding nature of its interim measures, most notably in the landmark judgment Mamatkulov and Askarov v. Turkey (2005).^[1] These measures are typically applied in situations involving imminent risks to life, health, or physical integrity, particularly in deportation or extradition cases. The ECtHR’s practice remains closely linked to individual interests, namely the protection of human rights.

This comparative overview reveals active judicial dialogue and a process of cross-fertilization among international and supranational courts. However, the CJEU’s approach has developed rather autonomously, taking on distinctive objectives.

The Distinctive Model of the CJEU

The legal basis for interim measures in EU law is found primarily in Articles 278 and 279 of the Treaty on the Functioning of the European Union (TFEU). These provisions empower the Court to suspend the application of contested EU acts and to prescribe any necessary interim measures. Although they are relatively concise, the Court has interpreted them broadly as expressions of its inherent judicial powers.

From the earliest stages of European integration, the CJEU has treated interim measures as legally binding and essential to ensuring the effectiveness of judicial review. This approach has also influenced the development of its broader jurisprudence.

The CJEU has also developed a structured set of conditions governing the granting of interim relief.^[2] In landmark cases such as Zuckerfabrik and Atlanta,^[3] the CJEU clarified that interim relief must be granted only when the applicant’s interest in obtaining provisional protection outweighs the interest in the immediate application of EU law.

At the same time, the CJEU has emphasized that national courts may grant interim relief in exceptional circumstances where necessary to safeguard rights derived from EU law. The Factortame litigation further strengthened this principle by confirming that national courts must be able to grant such relief in order to ensure the full effectiveness of EU law.^[4] In this way, interim measures have become an integral component of the system of judicial protection within the Union.

The “Constitutionalization” of Interim Measures

Based on this development, the jurisprudence of the CJEU has recently undergone a notable transformation. Interim measures are no longer confined to disputes involving private parties and economic interests, nor are they limited to safeguarding individual rights. Instead, they increasingly address systemic issues affecting the constitutional structure of the EU legal order.

This evolution is particularly visible in infringement proceedings brought by the European Commission against Member States. In several high-profile cases concerning judicial independence, the rule of law, or environmental protection, the CJEU has granted interim measures requiring Member States to suspend contested national legislation pending final judgment. Such an interpretation broadens the concept of “irreparable harm”, which had previously been understood primarily in economic terms. It demonstrates the Court’s willingness to intervene in order to protect broader systemic interests.

Furthermore, the CJEU has strengthened the enforcement of interim measures by imposing periodic penalty payments for non-compliance. This mechanism, traditionally associated with the post-judgment phase of infringement proceedings, is now also used to ensure compliance with provisional orders. These developments illustrate the Court’s willingness to deploy interim relief as a powerful tool for safeguarding the rule of law.

Institutional and Legitimacy Challenges

This development raises important institutional questions. Unlike the ICJ, where provisional measures are adopted by the full bench, the power to grant interim relief at the CJEU is concentrated in the hands of the President or Vice-President of the Court. This procedural design reflects the need for rapid decision-making, but it also raises concerns about the concentration of judicial authority.

Another issue concerns the absence of ordinary appellate review for interim orders. Because such decisions may have significant constitutional implications—particularly when they require Member States to suspend national legislation—the lack of appellate mechanisms has sparked debate regarding procedural safeguards and legitimacy.

At the same time, the expansion of interim measures to systemic issues inevitably touches upon sensitive questions of sovereignty and institutional balance within the EU. When interim relief affects core aspects of national constitutional arrangements, tensions may arise between the authority of EU law and the autonomy of Member States.

Conclusion

The comparative analysis presented in this article highlights the evolving role of interim measures in contemporary international adjudication. While courts such as the ICJ and the ECtHR have gradually strengthened the legal status of provisional measures, their practice remains largely anchored in the traditional objective of protecting individual rights or preserving the positions of states in inter-state disputes.

By contrast, the CJEU has developed a distinctive model of interim relief aimed at addressing systemic issues and safeguarding the effectiveness and autonomy of EU law. At the same time, the increasing reliance on such measures raises complex questions concerning legitimacy, competence, and institutional balance.

Ultimately, the evolution of interim measures in EU law reflects the broader transformation of the role of the CJEU within a supranational legal order. As the Court continues to expand the scope and intensity of interim measures and judicial protection, the key challenge will be to reconcile effectiveness with procedural safeguards and respect for the constitutional diversity of the Member States.

^[1] ECtHR, Mamatkulov and Askarov v. Turkey (Grand Chamber, applications nos. 46827/99 and 46951/99, Judgment of 4 February 2005), §§ 128-129. Later reinforced by, for example, ECtHR, Olaechea Cahuas v. Spain application no. 24668/03, Judgement of 10 August 2006, § 72. Also: Schabas, William A.: The European Convention on Human Rights. A Commentary (Oxford University Press, 2015), pp. 749-750.

^[2] Accordingly, applicants must demonstrate three cumulative requirements: the existence of a prima facie case (fumus boni juris), urgency, and a balancing of interests.

^[3] Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn (Joined Cases C-143/88 and C-92/89), Judgment of the Court of 21 February 1991, ECLI:EU:C:1991:65, [1991] ECR I-415. and 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.

^[4] Case C-213/89, The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others [1990] ECR I-2433.