Eric Barbier de La Serre, Mar 19, 2013
Before the EU Courts, nearly all applications for interim relief-including those made in major competition law cases-are heard by a single Judge, who is either the President or his delegate. While this rule is also applied in many Member States, the audacity of vesting a single person with the power to suspend decisions adopted by the full College of the European Commission, sometimes after years of complex proceedings, is noteworthy. If a suspension is not sufficient to ensure effective judicial protection, the Presidents can even address direct orders to the Commission.
In almost every case, the Presidents decide on their own whether they must strike quick and hard or, on the contrary, hold their horses. Clearly this is not an easy task, which probably explains why the case law on interim relief displays a recurring tension between audacity and caution.
- On the one hand, the Presidents sometimes do not shy away from using their impressive powers even when this means that they must make findings that are entirely at odds with the decision of the European Commission. One of the best examples of such audacity is the IMS Health case, in which the President of the (then) Court of First Instance (“CFI”) found that it was urgent to suspend a Commission decision ordering interim measures, i.e., measures which by definition, in the Commission’s view, needed to be applied urgently.
- On the other hand, in many cases the Presidents appear to have been extremely cautious, in particular when they refused a suspension of the challenged decision that would have provisionally preserved the applicant’s interests without causing any significant harm to the public interest or to third parties.
There are more orders reflecting the second trend-caution-than ones showing audacity. This unbalance has created some frustration among private litigants. The common wisdom in some legal circles has even become that “before the EU Courts one never gets interim relief.”
In our view this statement is unfair and unduly pessimistic. It is clearly very difficult-in fact exceptional-to obtain interim relief before the EU Courts. This is true in general and in competition law cases in particular, as from mid-1999 to January 2013 the President of the General Court dismissed close to 80 percent of the applications for interim relief made in competition law cases. Yet, litigants should not despair. After all interim relief was granted in 20 percent of these cases, which is not insignificant. In addition, and above all, there are several aspects of the law on interim relief-at least three fundamentals-that make it a wise, open, and powerful piece of EU procedural law (II).
That being said, it is submitted that effective judicial protection would be significantly enhanced-without causing excessive harm to the public interest-if two problematic fundamentals of the case law were reconsidered and fixed (III). As a matter of law and practice, there may not be so much that needs to be changed to ensure more effective, and balanced, judicial protection.