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A more thoughtful reflection

However, notwithstanding those doubts, thoughtful reflection on the subject appears to confirm the soundness of the Court’s findings. As a preliminary observation, it must be stressed that the decision at issue is an order issued in the context of summary proceedings in which, evidently, time is of essence. The Court may not be expected, in those circumstances, to answer in detail each and every argument put forward by the parties, let alone explain why its findings are not called into question by provisions, principles or case-law which the parties have not even invoked.

More importantly, several factors justifying the Court’s approach emerge when the order at issue is examined within its broader context. To begin with, Article 279 TFEU unquestionably applies in the context of proceedings brought under Article 258 TFEU: the first cases go as far back as to the mid-1970s.[1] Moreover, the Court has already clarified that ‘the provisions on judicial protection in the field of interim measures cannot be interpreted narrowly, as otherwise there would be the risk of a lacuna in the Treaties’. Thus, although the Court cannot interpret the Treaty provisions in a manner that extends its jurisdiction beyond the limits set out therein, it does not mean that those provisions should be given a narrow interpretation, particularly where that might deprive them of effectiveness. Such logic applies especially to the procedure provided for in Article 279 TFEU, considering its broad formulation and its specific role within the system of judicial remedies set out in the Treaties.

In the light of the provision’s very wording, it is clear that the range of possible measures under Article 279 TFEU is not predetermined: arguably, any measure ... must mean any measure. As AG Reischl stated, that provision ‘is expressed in very general terms and lays down no exceptions for certain types of procedures or measures’. More recently, Lasok wrote: ‘there is in principle no limit (other than practicalities) to the type of measure that the Court may order’. It is, for example, undisputed that, on the basis of Article 279 TFEU, the judge hearing the application for interim relief may issue, on a provisional basis, injunctions or ‘appropriate directions’ to the parties. Accordingly, at this interlocutory stage, the Court may require a

Member State to do something, whereas that is not possible in the main action, since a judgment given under Article 258 TFEU is merely declarator}'.[2]

With regard, then, to the effects of the measures that may be ordered, the Court has pointed out that recourse to measures which give rise to irreversible effects are not excluded as matter of principle. The Court has accepted that such measures may be granted ‘where the prima facie case appears particularly strong and the urgency of the measures sought undeniable’. Those requirements were obviously met in the Bialowieska Forest case. Furthermore, the imposition of penalty payments would have by no means prejudiced the substance of the case in the main action, meaning the future final decision of the Court. Finally, it is true that the EU Courts typically refuse to grant interim measures where alternative avenues to avert the damage exist under EU and/or national law. In the case at hand, however, there seemed to be no alternative avenue to protect the integrity of the natural site (not to mention alternative measures to protect the authority of the Court). It is also worth recalling, in this context, that damage to the environment is generally considered irreparable.

  • [1] “See, e.g. Cases 61/77 R and 61/77 R-II, Commission v. Ireland, EU:C: 1977:122 and EU:C:1977:126; Joined Cases 31/77 R, Commission v. United Kingdom, and 53/77 R, United Kingdom v. Commission, EU :C: 1977:86. 2 See e.g. Case C-399/95 R, Germany v. Commission, EU:C:1996:193, para. 46 and the case-law cited. 3 Opinion in Case C-61/77 R, Commission v. Ireland, EU:C:1977:122, pp. 953-954. 4 6iK.P.E Lasok, Lasok’s European Court Practice and Procedure (3rJ ed., Bloomsbury, 2016) 640. 5 “See, to that effect, Cases 118/83 R, Muratori, EU:C:1983:225, para. 53; C-76/08 R, Commission v. Malta, EU:C:2008:252, para. 19; and T-203/95 R, Connelly, EU:T:1995:208, paras. 24-25.
  • [2] See e.g. K. Lenaerts, I. Maselis, K. Gutman, EU Procedural Law (OUP, 2014) 571. 2 “Case C-393/96 P(R), Antonissen, EU:C:1997:42, para. 41. 3 6'See e.g. Cases C-310/85 R, Deufil, EU:C:1986:58, para. 22; and T-417/05 R, Endesa, EU:T:2006:41, para. 50. 4 “Case C-320/03 R, Commission v. Austria, EU:C:2004:231, para. 92. 5 “See, inter alia, B. Schima, ‘Comment to Article 258 TFEU’, in Kellerbauer, Klamert, Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights: A Commentary (OUP, 2019) 1775. 6 See European Commission, Monitoring the Application of Union Law - 2018 Annual Report - Part I: general statistical overview, especially pp. 10-22.
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