The availability of interim measures before the General Court: Striking the right balance between the presumption of legality and the right to provisional protection

Abstract

This article focuses on the availability of interim measures in the context of applications for annulment of EU legal acts. Articles 278 and 279 TFEU foresee the suspension of the operation of the contested act, or the granting of other interim measures, as an exception if certain strict conditions are met. Recent changes in the case law of the EU Courts have brought a more flexible interpretation of these conditions. However, two structural limitations to the availability of interim measures remain which may seem questionable. The first limitation relates to the demonstration that the application of the contested act would lead to damage of an “irreparable nature”. The second limitation concerns the absence of “pre-proceedings” or ante causam interim measures that would allow for an early suspension of the operation of an act even before the introduction of the application for annulment interim measures, General Court, presumption of legality, right to provisional protection