Provisional Legal Protection in Europe

Provisional Legal Protection in the EU (Articles 278 and 279 TFEU)

Actions filed with the Court of Justice or the General Court, or appeals lodged against their judgments, do not have suspensive effect. It is, however, possible to apply to the Court of Justice or the General Court for an order to suspend the application of the contested act (Article 278 TFEU) or for an interim court order (Article 279 TFEU).

Context of Provisional Legal Protection in the European Union

The merits of any application for interim measures are assessed by the courts on the basis of the following three criteria: (1) prospect of success on the main issue (fumus boni juris): this is assessed by the court in a preliminary summary examination of the arguments submitted by the appellant; (2) urgency of the order: this is assessed on the basis of whether the order applied for by the appellant is necessary in order to ward off serious and irreparable harm; the criteria used for making this assessment include the nature and seriousness of the infringement, and its specific and irreversibly adverse effects on the appellant’s property and other objects of legal protection; financial loss is deemed to be of a serious and irreparable nature only if it cannot be made good even if the appellant is successful in the main proceedings; (3) weighing of interests: the adverse effects likely to be suffered by the appellant if the application for an interim order is refused are weighed against the EU’s interest in immediate implementation of the measure, and against the detrimental effects on third parties if the interim order were to be issued.