Informality speeds wheels of Union’s legal processes

Date: 05/12/1996

By Ian S. Forrester QC

ANYONE who initiates a legal process normally wants results quickly. A complainant to the European Commission and a householder unhappy about the height of a neighbour's hedge are equally anxious to get a hearing, being convinced that speedy justice will favour them.

In the case of national court procedures, delays can be deplorable: a Belgian case raised in 1995 has been set down for argument in May 1998.

In some countries, especially the Netherlands, a fast track to provisional justice is available: Dutch kort geding proceedings are routinely used to obtain a rapid hearing before a judge on procedural or injunctive issues. The merits of the case are briefly described, some written pleadings may be exchanged and the judge takes a decision.

The substance will be left to be heard months or years later: however, in many cases, the kort geding hearing will have been enough for the parties and no further proceedings are needed. Thus hearings which are nominally procedural and provisional can in fact be very important for the resolution of a dispute.

This is also true in European law. Under the EC treaty, appeals to the European Court of First Instance or the European Court of Justice do not have suspensive effect, so merely raising an action against a Commission decision in the competition field does not excuse a firm from complying with that decision. Especially where the case involves several parties, contested facts and thousands of pages of evidence, the firm cannot hope to obtain a judgement within two years.

If it feels very strongly about the decision, or if the decision imposes explicit obligations upon it, the company will be tempted to request 'interim measures' from the president of the Court, often seeking the suspension of the decision pending an ultimate finding on the merits of the appeal.

It is difficult to succeed in obtaining interim measures, which are intended to ensure that simple lapse of time does not eliminate a controversy. The applicant must show that he or she has good legal arguments (not difficult), that there is urgency (more difficult), and that without measures to preserve the status quo the final judgement of the merits risks being pointless (very difficult).

For example, if the Commission orders a supplier to make goods available to an unwelcome customer on legal grounds which subsequently appear erroneous, victory two years later before the Court of First Instance might not give the supplier adequate redress for the commercial damage.

Despite the conservative approach of both courts, interim measures applications are increasing. In the case of Bayer/Adalat where the Commission broke new ground in defining what could be an agreement and ordered the firm to inform its customers of a new policy, the president of the Court of First Instance suspended part of the decision, thus both showing mild scepticism about the decision itself and excusing the firm from immediately altering its commercial behaviour.

In the case of Lehrfreund, a company came within a whisker of getting the interim suspension of a regulation on fur imports. The Commission and the firm agreed the regulation could not mean what it seemed to mean - but if it did mean that, the consequences would have been fatal for the company.

The firm was unsuccessful in one sense, since the president felt that perhaps it could have found alternative ways of keeping busy if it could no longer import furs. But it was successful in another, since the airing in Luxembourg clarified that the unfavourable reading would have been absurd.

Thus requesting interim measures in Luxembourg, even in a case where the merits seem doubtful, may bring advantages: it guarantees a rapid airing of the grievance, it forces the administration to be ready and it might lead to the president inviting the parties to find a solution. To repeat a familiar theme, the imminence of a hearing puts pressure upon the adversary.

In the Camera Care case, the ECJ confirmed that the Commission had the power to take interim measures. Such decisions are very rare: more commonly, the Commission expresses its preferences to the offending party in such a manner that it acts to pre-empt a formal decision.

But complainants often call upon the Commission to take interim measures.

This conveys urgency and cannot be ignored, and has the additional advantage of precipitating a formal Commission act fairly quickly.

That act will most often be a letter stating that the request will be rejected because interim measures are inappropriate.

However, the complainant can then go off to Luxembourg with that negative decision and challenge it before the Court of First Instance, seeking interim measures from that Court also. This brings a swift hearing, nominally on whether interim measures should be available, but in reality on the broader issue of whether the complainant has a good case. Because of the informality of interim measures proceedings, unexpected testimony and arguments can materialise. Interim measures proceedings are full of surprises.

This article reflects the personal views of the author.