Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. The reply which the Court is called upon to give to two questions referred to it by the House of Lords for a preliminary ruling in the Factortame case certainly will rank amongst those which help to define the context of relations between national courts and Community law. And, I would add, on a point of unquestionable importance.

2. The dispute which gave rise to the reference for a preliminary ruling concerns a considerable number of companies operating in the fisheries sector, which are incorporated under the laws of the United Kingdom but represent Spanish interests. These undertakings contest the validity under Community law of a United Kingdom statute of 1988 which altered the requirements for registration in the register of fishing vessels, in particular as regards nationality and residence of the beneficial ownership, deliberately strengthening those requirements in the case of foreign interests (including Community interests). Relying on certain provisions of the Treaty having direct effect, Factortame Limited and others instituted proceedings for judicial review of the Act in question, seeking a declaration that the Act should not apply to them on the ground that such application would be contrary to Community law, an order prohibiting the authorities from treating the registration of the vessels under the old Act as having ceased, and interim relief pending final judgment.

3. At first instance, the Divisional Court of the Queen's Bench Division made a reference to the Court of Justice for a preliminary ruling on the interpretation of the provisions of Community law raised and, as an interim measure, ordered the Secretary of State for Transport not to apply the new Act to the applicants pending final judgment or further order of the court.

4. The Secretary of State for Transport appealed against the order for interim relief which was set aside by the Court of Appeal on the ground that United Kingdom courts do not have the power to suspend, by way of interim relief, the application of statutes or to grant an injunction against the Crown.

5. The House of Lords, before which the matter was brought, confirmed that as a matter of English law the courts have no power to suspend the application of an Act of Parliament on the ground of its alleged, but unproven, incompatibility with Community law, and referred to the Court of Justice for a preliminary ruling the questions mentioned above, in order essentially to ascertain whether that which is not permitted by English law is required or permitted by Community law.

6. It should be stated by way of a preliminary observation that the House of Lords acknowledges that it has the power and the duty to give preference over the conflicting national statute to a provision of the Treaty or a provision of secondary Community law having direct effect in the United Kingdom legal order, and that this is so when the conflict is immediately and readily discernible, either by virtue of an already existing interpretation of the Community provision by the Court of Justice or by virtue of the fact that the provision itself is sufficiently clear in its content. The problem arose, however, because there was no certainty as to the interpretation of the Community provisions relevant to the circumstances, but rather there were serious arguments both for and against the existence of the rights claimed, which prompted the Divisional Court to ask the Court of Justice to give a preliminary ruling on the interpretation of those provisions. The questions raised form the subject-matter of different proceedings (Case 221/89) which are separate from the present proceedings. Moreover, to complete the picture, I would recall that, as regards the alleged incompatibility with Community law of the same United Kingdom statute in point, the Commission brought proceedings under Article 169 against the United Kingdom, but solely on the nationality aspects, likewise seeking, by way of an interim measure, the suspension of application of the Act. The Court has already made an order granting such a measure and the Act has also been amended in that respect.

7. As a further preliminary matter, I think it is appropriate to point out that the problem has arisen in the context of the special proceedings by way of application for judicial review provided for by English law which were brought by the parties concerned even before the new Act on the register of shipping entered into force. On this point both the House of Lords in its order for reference and the United Kingdom in its written observations have stressed that, had the question of a conflict with Community law arisen in the course of criminal or administrative proceedings brought against those same parties for contravention of the Act on the register of shipping, the national court could well have stayed the proceedings (and even any forfeiture proceedings in respect of vessels) pending the outcome of the request for a preliminary ruling by the Court of Justice on the interpretation of the relevant Community provisions. The consequences of the Court's ruling, whether favourable or unfavourable as regards the claim made by the parties concerned, would then have been applied to them retroactively. The House of Lords infers therefrom that, in such a case, the prosecution or forfeiture proceedings would not be frustrated but suspended (page 13 of the order for reference).

8. On the other hand, I do attach importance to the fact, stressed by the national court, that in a situation such as the one now before this Court, that is to say in the absence of interim measures, the economic damage suffered by the appellants in the course of the proceedings would remain irreparable, an action for damages being precluded by settled national case-law (see order for reference, p. 6). It follows that, even were an interpretative ruling to be given by the Court, upholding the arguments of the appellants in the main proceedings, the subsequent judgment by the national court could not award compensation for the damage suffered and the proceedings might in any event be frustrated.

9. The national court has specifically identified the principles of Community law whose interpretation by way of a preliminary ruling by the Court would enable it to resolve the problem, in one way or another: the direct effect of the Community provisions relied on, the obligation to provide direct and immediate protection of individual rights, the practical efficacy of judicial remedies, the obligation to refrain from applying national measures and/or practices which render the exercise of such rights and the protection afforded to them impossible.

10. The principles of Community law which the House of Lords has stated to be relevant and on whose interpretation its decision will depend are fundamental principles enshrined in numerous judgments of the Court. Those principles are however observed — and without difficulty — by the United Kingdom courts, with the sole reservation which constitutes at once the reason for and the subject of these proceedings. Are such principles also to be interpreted as meaning that the national court must (or may) grant an interim measure requiring the Crown to refrain from applying, during the proceedings on the substance of the case, a measure (in this case an Act of Parliament) in respect of which there is no certainty but merely a suspicion, however serious, that it is incompatible with Community law? In other words, do the obligations which Community law imposes on the national courts concerning the protection of rights conferred directly on individuals also include the requirement to order the suspension, by way of interim protection, of the application of a national law which is alleged to be in conflict with Community law?

11. In addition to a rapid survey of the relevant principles of Community law, which are well known to the national court, the reply to this question calls for an identification of the requirement which is at the origin and is also the raison d'être of interim protection, a concept long anchored in jurisprudence and in the legal systems of the Member States.

12. The starting point for the appraisal of the problem is that, as is accepted in this case, directly effective Community provisions are involved in the now uncontested sense of measures immediately conferring on individuals enforceable legal rights which, as such, may be relied upon before national courts. It is scarcely necessary to emphasize that it is on that assumption that the questions have been referred to the Court for a preliminary ruling, irrespective of which Community provisions are involved and the correct interpretation thereof. In fact, it is not the interpretation of the individual Treaty provisions relied on by the appellants in the dispute before the national court which is requested in these proceedings (merely for the sake of clarity, I would remind the Court that Anieles 7, 52, 58 and 221 of the Treaty are involved), but rather the interpretation of the principles of Community law mentioned above. In other words, the Court is not requested to embark upon an examination of the substance of the provisions relied on by the appellants, which is the subject of other, and separate, proceedings for a preliminary ruling, which are, I repeat, also pending before the Court (Case 221/89), but rather to give a general reply with regard to the interim protection of rights claimed by individuals by virtue of directly effective Community provisions.

13. That being so, I would recall that provisions of Community law having direct effect must be fully and uniformly applied in all the Member States from the date of their entry into force and for so long as they continue in force and that this consequence also concerns any national court whose task it is as an organ of a Member State to protect, in a case within its jurisdiction, the rights conferred upon individuals by Community law (judgment in Simmenthal, paragraph 16). And again in that judgment the Court affirmed that, in view of the supremacy of Community law, the relevant provisions having direct effect not only by their entry into force, render automatically inapplicable any conflicting provision of current national law, but also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions (judgment in Simmenthal, paragraph 17).

14. Equally beyond dispute, and in harmony with the principle of collaboration enshrined in Article 5 of the Treaty, which is the real key to the interpretation of the whole system, is the fact that the methods and the machinery for protecting rights conferred on individuals by provisions of Community law are and remain, in the absence of a harmonized system of procedure, those provided for in the domestic legal systems of the Member States. That principle, which recurs in the Court's case-law, is nevertheless based on a fundamental precondition, which is also derived from the second paragraph of Article 5, namely that the methods and national procedures must be no less favourable than those applying to like remedies for the protection of rights founded on national provisions and must also not be such as to render impossible in practice the exercise of rights which the national courts are obliged to protect.

15. It is therefore firmly established, in the light of the Court's well-settled case-law, which has moreover been pertinently cited by the House of Lords, that national courts are required to afford complete and effective judicial protection to individuals on whom enforceable legal rights are conferred under a directly effective Community provision, on condition that the Community provision governs the matter in question from the moment of its entry into force, and that from this it follows that any national provision or practice which precludes those courts from giving full effect to the Community provision is incompatible with Community law.

16. The problem which the national court has raised is a general one and is not new, even though, although it has been implicitly overcome by other courts, it is submitted for the first time for the judgment of the Court, perhaps not by chance in the context of the somewhat special situation represented by the procedure for judicial review of laws provided for in the United Kingdom. The question, therefore, does not concern solely the English legal system, nor does itrelate solely to the relationship between a national law and a Community provision, but rather it relates to the requirement for, and the very existence of, the interim protection of a right which is not certain but whose existence is in the course of being determined in a situation where there is a conflict between legal rules of differing rank. This is a conflict which, as regards the relationship between a national provision and a Community provision, quite apart from the theoretical or terminological choices and methods applied in the individual Member States, finds effective expression the concept of primauté, that is to say the precedence of the latter provision over the former.

17. To compensate for the fact that these two points in time do not coincide there is a first and general remedy. It is indeed true that only the definitive establishment of the existence of the right confers on the right fullness and certainty of content in the sense of placing the right itself, and the means whereby it may be exercised, finally beyond dispute (res judicata in the substantive sense); but it is also true that that effect is carried back to the point in time when the right was invoked by initiating the procedure for judicial review. The effect of the establishment of the existence of the right, inappropriately but significantly described as retroactive effect, is merely the consequence of the function of the provision and of its nature and modus operandi which in fact gives rise to an enforceable legal right from the moment when the provision enters into force and for so long as it continues in force. The only possible delay is that which may occur before the right becomes fully effective and operational in cases where application to a court is needed in order to establish the existence of the right, and in particular in cases of prior review of the validity of the provision which is alleged to be applicable. And it is scarcely necessary to add that the situation would be no different if the question were examined from the opposite point of view and one were to consider the nonexistence of the right and the finding to that effect.

18. The abovementioned general remedy for the lack of contemporaneity between the establishment of the right's existence and its actual existence does not always succeed in achieving the main objective of judicial protection. Sometimes the right's existence is established too late for the right claimed to be fully and usefully exercised, which is the more likely to be the case the more structured and complex, and the more probably rich in safeguards is the procedure culminating in the definitive establishment of the right. The result is that in such a case the utility as well as the effectiveness of judicial protection may be lost and there could be a betrayal of the principle, long established in jurisprudence, according to which the need to have recourse to legal proceedings to enforce a right should not occasion damage to the party in the right.

19. Now that the function of interim protection has been brought into focus, such protection can be seen to be a fundamental and indispensable instrument of any judicial system, which seeks to achieve, in the particular case and always in an effective manner, the objective of determining the existence of a right and more generally of giving effect to the relevant legal provision, whenever the duration of the proceedings is likely to prejudice the attainment of this objective and therefore to nullify the effectiveness of the judgment.

20. It follows that what is commonly called the presumption of validity, which attaches to laws or administrative acts no less than it does to Community acts, until such time as it is established by judicial determination that the measure in question is incompatible with a rule of law of a higher order or in any event having precedence, to the extent that such a procedure is provided for, does not constitute a formal obstacle to the interim protection of enforceable legal rights. In fact, precisely because what is concerned is a presumption, which as such may be rebutted by the final determination, it remains necessary to provide a remedy to compensate for the fact that the final ruling establishing the existence of the right may come too late and therefore be of no use to the successful party.

21. In brief, the presumption that a law or an administrative act is valid may not and must not mean that the very possibility of interim protection is precluded where the measure in question may form the subject of a final judicial review of its validity.

22. In a procedural situation of the type with which we are concerned here, in which one provision is alleged to be incompatible with another of a higher order or having precedence, it is essential, as has already been stressed, to hear in mind the fact that both provisions hypothetically apply to the case in question from the moment when the application is made. That is especially so since the final determination, whose consequences are made to take effect from the time of the application, creates nothing new as regards the existence (or the nonexistence) of the right claimed because the provisions in point are hypothetically valid and operative in the alternative (or invalid and inoperative) and to both is attached what is commonly called a presumption of validity, whilst what is postponed, owing to the time taken by the proceedings, is merely the point in time at which the final determination is made. In the meantime, a situation prevails which may be defined precisely in terms of apparent Law and which is the very reason for interim measures, neither of the provisions in point giving rise to rights which are more than putative. It is therefore not a case of there being certainty (with the corresponding presumption of validity) as to one provision and uncertainty as to the other but the putative existence of both provisions. It is for the courts to assess whether the putative nature of the right claimed is such that interim protection must be granted or refused, on the basis of substantive criteria linked to the greater or lesser extent to which provision at issue appears to be valid (prima-facie case ifumus boni juris), however designated) and to the possibility or otherwise that one or other of the interests in question may be prejudiced pending the final outcome of the proceedings.

23. The foregoing observations are amply confirmed by the fact that in all the legal systems of the Member States (the Danish system constitutes a partial exception), however diverse may be the forms and requirements connected with the duration of the proceedings, there is provision for the interim protection of rights denied under a lower ranking provision but claimed on the basis of a provision of a higher order.

24. If attention is now turned to the relationship between national provisions and Community provisions, there is no doubt that, by means of preliminary rulings given by the Court of Justice and the direct competence of national courts, machinery has been introduced which essentially consists of the review of the validity (or of compatibility, if this is preferred) of a national provision in relation to a Community provision, given that the national courts have jurisdiction to rule definitively that the former is incompatible with the latter. And if therefore the national courts may, indeed must, disapply a national law which conflicts with a Community provision having direct effect, once a definitive finding has been made to that effect (or, at any rate, must achieve that substantive result), they must also be able to disapply that law provisionally, provided that the preconditions are satisfied, where the incompatibility is not entirely certain or established but may call for a preliminary ruling by the Court of Justice. Otherwise, that judicial protection of the rights conferred on individuals by the Community provision which, as has been affirmed by the Court on numerous occasions and also specifically pointed out by the House of Lords, is the subject of a precise obligation on the part of the national courts, might be nullified.

25. This brings me back to the concrete case submitted for the consideration of the Court by way of the questions referred to it by the House of Lords. The right of the appellants in the main proceedings, which is denied by the national statute, is claimed on the basis of certain Treaty provisions having direct effect, that is to say provisions which prevail over domestic law but whose interpretation in the sense contended for is not free from doubt and, consequently, requires a preliminary ruling by the Court. In the meantime, the national court finds a bar to interim protection of the rights claimed in the presumption of validity which attaches to the statute until a final determination is made.

26. What I mean to say, therefore, is that this assessment must be carried out on the basis of substantive criteria and not, as suggested by the United Kingdom, on the basis of a formal criterion such as the presumption of the validity of a statute.

27. Nor does it avail to put forward as a counter argument the presumption of validity which attaches to Community measures, a presumption stressed many times by the Court. That is an argument which ends up by demonstrating the contrary. It is scarcely necessary to recall to mind Article 185 of the Treaty which expressly provides that the Court may if it considers that circumstances so require, order that application of the contested act be suspended.

28. Similarly, it is not at the formal but rather on the substantive level that it is necessary to assess the possibility that interim protection may be obtained (also) by way of an injunction against the Crown. By way of example, I would consider it unreasonable to think in terms of an injunction (to adopt a measure or enact primary legislation) which would amount to an interference with the discretionary powers enjoyed by the Crown or even by Parliament, whilst on the other hand I would regard it as being entirely reasonable and orthodox to order concrete nondiscretionary action to be taken or, as in this case, the temporary suspension of application of the statute or administrative act, solely with regard to the parties to the proceedings, until such time as the court is in a position definitively to apply or to disapply one or the other.

29. In conclusion, the reply which I propose should be given by the Court to the first question put to it by the House of Lords is affirmative in the sense that, under Community law, the national court must be able to afford interim protection, where the preconditions are met, to rights claimed by an individual on the basis of provisions of Community law having direct effect, pending the final outcome of the proceedings, including proceedings on a reference to the Court of Justice for a preliminary ruling. And I also suggest that the Court should expressly link this power and duty of the national court to the requirement for effective judicial protection which applies in relation to provisions of Community law just as much as it does in relation to provisions of national law.

30. I need hardly add that such a reply does not amount to imposing remedies or judicial procedures different from those already provided for in the domestic law of the Member States but merely implies that such remedies or procedures must be used for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning admissibility and procedure as would apply were it a question of ensuring observance of national law. But I would recall once again that the principle in question, according to which the means of affording judicial protection to rights conferred by provisions of Community law remain exclusively those provided for by domestic law, does not apply if those rules and time-limits made it impossible in practice to exercise rights which the national courts have a duty to protect.

31. In fact, as is made clear also by the order for reference and the observations of the United Kingdom, provision is made in the United Kingdom procedural system for the interim protection of a right, pending the final determination, whenever a danger would be caused by delay (periculum in mora) and a prima-facie case is made out (the Divisional Court did grant the interim relief requested). Consequently, it is not a question here of a procedure which is not provided for by the national legal system, rather it is simply a question of using the already existing procedure in order to protect a right claimed on the basis of a provision of Community law having direct effect. The same may be said of the impossibility, to which reference has been made, of obtaining an injunction against the Crown, when in reality it is merely a case of ordering the provisional suspension of the application of a statute to the parties concerned, it being clearly understood that it may be the latter who will bear the risk of a final determination unfavourable to them.

32. Nor does there seem to me to be any justified basis for arguing a contrario (as in the observations of Ireland and the United Kingdom) that individuals are already afforded sufficient protection by virtue of the possibility open to the Commission, in the context of infringement proceedings brought under Article 169, to apply to the Court of Justice for interim measures, a situation which in fact also occurred in this instance in regard to the nationality requirements of the United Kingdom legislation now before the Court, as I have already indicated. In this respect may it suffice to recall the judgment in Van Gend & Loos, in which the Court affirmed that a restriction of the guarantees against an infringement by Member States of a Community provision having direct effect to the procedures under Articles 169 and 170 would remove all direct legal protection of the individual rights of their nationals.

33. The reply to the first question raised by the House of Lords, therefore, can only be in the affirmative, in the sense that the national court's duty to afford effective judicial protection to rights conferred on the individual by Community law, where the relevant requirements are satisfied, cannot fail to include the provision of interim protection for the rights claimed, pending a final determination.

34. On the basis of the foregoing considerations, I therefore propose that the Court should reply as follows to the questions formulated by the House of Lords:

1 Original language: Italian.

2 Order of 10 October 1989 in Case 246/89 R Commission v United Kingdom [1989] ECR 3125.

3 Sec for example the order of the Court of 21 August 1981 in Case 232/81 R Agricola Commerciale Olio [1981] ECR 2193, paragraph 9.

4 Among other authorities, see judgments of 9 March 1978 in Case 106/77 Simmenthat [1977] ECR 629, paragraph 14, and of 10 July 1980 in Case 811/79 Ariete [1980] ECR 2545, paragraph 5.

5 Judgments of 16 December 1976 in Case 33/76 Rewe v Landwirtschafikammer Saarland [1976] ECR 1989, paragraph 5, of 16 December 1975 in Case 45/76 Cornel v Produktschap voor Siergewassen [1975] ECR 2043, paragraphs 15 and 16, of 10 July 1980 in Case 811/79 Amministrazione delle finanze dello Stato v Ariete [1980] ECR 2545, paragraph 12, of 12 June 1980 in Case 130/79 Express Dairy Foods v Intervention Board for Agricultural Produce [1980] ECR 1887, paragraph 12, of 27 March 1980 in Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 25, of 27 February 1980 in Case 68/79 Just v Ministry of Fiscal Affairs [1980] ECR 501, paragraph 25 and of 9 November 1983 in Case 199/82 San Giorgio [1983] ECR 3595, paragraphs 12 et seq.

6 I would also cite the recent judgment of 21 September 1989 in Case 68/88 Commission v Greece [1989] ECR 2965, in which the Court reaffirms that Article 5 of the Treaty requires Member States to take all measures appropriate to ensure the application and effectiveness of Community law (paragraph 23, provisional translation).

7 On morc than one occasion on which a reference has been made to the Court in the context of an alleged conflia between a national provision (law or administrative act) and Community law, the national court without hesitation granted interim measures as well, which in substance amounted to a provisional suspension of the application of the instrument in question. For example, a stay of execution of an expulsion order from the Netherlands was ordered in the judgment of 17 April 1986 in Case 59/85 Reed [1986] ECR 1283; again, an employment relationship with the University of Venice was ordered to be maintained (judgment of 30 May 1989 in Case 33/88 Allui [1989] ECR 1591); in another case a provisional residence permit was ordered to be issued in Belgium (Case 363/89, pending).

8 An analogous problem to the one before the Court was raised before numerous French courts when a new law on minimum prices for petrol (and also for books) was introduced which was not observed by some distributors who alleged that it was incompatible with Community law. Other traders objected to that attitude and sought interim prohibitory measures on the basis of the new law. Not a few courts granted the orders requested, basing their decision on the presumption of the validity of the law when confronted with a mere suspicion that it was incompatible with the Treaty (for example judgment of the tribunal de grande instance, Le Mans, 11.7.1983, Gazette du Palais, 1984, 1, summary, p. 121); other courts refused to grant the interim measures precisely on the ground that the infringement of the law suspected of being incompatible with Community law was not a trouble manifestement illicite (Cour d'appel, Paris, 4.7.1984, Gazette du Palais, 1984, 2, p. 658, note by Fourgoix; tribunal de grande instance, Pontoise, 22.2.1984, ibid., p. 296; see Berlin, Un trouble manifestement illicite: la lutte contre la vie chère, Gazette du Palais, 1983, doa., p. 419; also Le juge des référés et le droit communautaire, ibid, 1984, doct. 48). The French Court of Cassation has given its formal approval to this second approach (chambre commerciale, 15.5.1985, Gazette du Palais, 1985, 2, panor., pp. 346 and 347), basing itself however on the judgment of the Court of Justice delivered in the meantime to the effect that the contested law was incompatible (judgments of 10 January 1985 in Case 229/83 Leden v Au Bli Vert [19851 ECR 1 and of 29 January 1985 in Casc 231/83 Callet and Another v Ledere [1985] ECR 305). Subsequently, the Court of Cassation, again as a result of a decision by the Court (judgment of 4 May 1988 in Case 30/87 Bodson [1988] ECR 2479), but in more general terms, affirmed that it was for the judge hearing the application for interim relief to verify whether the trouble relied on was manifestly unlawful under the Treaty of Rome (Commercial Chamber, 10.7.1989, Dalloz 1989, p. 243). See also Court of Cassation, 22.4.1986, Dalloz 1986, p. 242.

9 Judgment of 10 July 1980 in Case 826/79 Mirteo [1980] ECR 2559, paragraph 7.

10 See for example the order of 12 December 1968 in Case 27/68 Renkens [1969] ECR 274. See alio the Opinion of Mr Advocate General Capotorti in Joined Cases 24/80 and 97/80 R Commission v France [1980] ECR 1319, at p. 1337. In substantially the same terms are the orders of 8 April 1965 in Case 18/65 R Gutmann v Commission [1966] ECR 135, of 14 December 1982 in Case 260/82 R NSO v Commission [1982] ECR 4371, of 13 December 1984 in Case 269/84 R Fabbro v Commission [1984] ECR 4333, and of 16 March 1988 in Case 44/88 R de Compte [1988] ECR 1669. The necessary link between the effectiveness of judicial protection and interim relief was brought into focus, as is known, by Italian doctrine (Choivenda, Istituzioni di diritto processuale civile, I, Naples, 1933, No 12; also Principi di diritto processuale civile, Naples, 1906, pp. 137 et seq; Calamandrei, Introduzione allo studio sistematico dei provvedimenti cautelari, Padua, 1936) and by German academic legal literature (Hedwig, System des deutschen Zivilprozeßrechts, Leipzig, 1913, II, pp. 22 et seq). The principle that the duration of the proceedings must not cause damage to the party in the right is to be found in a different formulation in a judgment of the German/Polish Mixed Arbitration Tribunal of 29.7.1924 : Par les mesures conservatoires, les tribunaux cherchent á remédier aux lenteurs de la justice, de manière qu'autant que possible l'issue du proces soit la même que s'il pouvait se terminer en un jour. (By means of interim measures the courts seek to make up for the law's delays in such a way that as far as possible the outcome of the proceedings is the same as if they could have been completed in one day) ; Decisions of the Tribunal, V, 455. See also the decision of the Bundesverfassungsgericht (Federal Constituüonal Court) of 19.6.1973 commented on in NJW 1973,34, pp. 1491 et seq (Der Sinn dieses besonderen Verfahrens besteht darin, einen effektiven Gerichtsschutz gegenüber Maßnahmen der Exekutive zu sichern and durchzusetzen. ... Das Verfahrensgrundrecht des Art. 19Abs.4bb garantien nicht nur das formelle Recht und die theoretische Möglichkeit, die Gerichte anzurufen, sondern auch die Effektivität des Rechtsschutzes ; der Bürger hat einen substantiellen Anspruch auf eine tatsachlich wirksame gerichtliche Kontrolle (The purpose of this special procedure is to secure the effective protection of the court against measures taken by the executive. ... The procedural fundamental right contained in Anide 19(4)(bb) of the Basic Law guarantees not only the formal right and the theoretical possibility of applying to the courts, but also the effectiveness of legal protection. The citizen has a substantive right to judicial review which is in fan effective). See, finally, Corte Costituzionale No 190 of 28.6.1985 to the effect that the principle must be respected whereby the duration of the proceedings should not occasion damage to the party who is right, the validity of which principle has been demonstrated from the beginning of this century notonly in Italian academic literature (Foro italiano, 1985, I, 1881). On the origins and foundations of interim protection in France, see Debbasch, Procedure administrative contentieuse et procédure civile, Paris, 1962, pp. 300 er seq.

11 Order of 5 August 1983 in Case 118/83 R CMC and Others [1983] ECR 2583, paragraph 37.

12 Bundesverfassungsgericht, 16.10.1977, Schleyer, in Foro italiano, 1978, IV, p. 222; Bundesverfassungsgericht, 19.6.1962, in BVerfGE, Vol. 14, p. 153.

13 Bundesverfassungsgericht, 5.10.1977, BVerfGE, Vol. 46, p. 43.

14 Pretore, Bari, order of 4.2.1978, Foro italiano, 1978, I, 1807; Pretore, La Spezia, order of 29.3.1978, Foro italiano, 1979, I, 285; Pretore, Pisa, order of 30.7.1977, Foro italiano, 1977, I, 2354; Pretore, Pavia, order of 14.3.1977, Riv. giur. lav. 1977, II, 640; Pretore, Voltri, order of 1.9.1977, Riv, giur. Uv. 1977, II, 639; Pretore, La Spezia, order of 23.11.1978, Foro italiano, 1979, I, 1921 et seq.

15 Verde, Considerazioni sul procedimento d'urgenza, in Studi Aminoli, Naples, 1979, pp. 446 et seq; Mortati, Istituzioni di diritto pubblico, 1976, II, p. 1391; Campanile, Procedimento d'urgenza e incidente di legittimità costituzionale. Riv. dir. proc. 1985, pp. 124 et seq; Zagrebelsky, La tutela d'urgenza, in Le garanzie giurisdizionali dei diritti fondamentali, Padua, 1988, pp. 27 et seq; Sandulli, Manuale di diritto amministrativo, Naples, 1984, II, p. 1408.

16 But see, with regard to the permissibility of interim protection pending settlement of jurisdictional questions, Corte costituzionale No 73 of 6.6.1973, foro italiano, 1973, I, 1657; also Corte di Cassazione, Sezioni Unite, 1.12.1978, No 5678, Foro italiano, 1978, I, 2704.

17 Corte costituzionale, 27.12.1974, No 284, Foro italiano, 1975, I, 263.

18 Corte costituzionale, 28.6.1985, No 190, Foro italiano, 1985, I, 1881. See also, for some points of interest, Corte di cassazione, Sez. Unite Civili, 1.12.1978, No 5678, Foro italiano, 1978, I, 2704; Consiglio di Suto, Ad. plen., 14.4.1972, No 5, Foro italiano, 1972, III, 105; idem, 8.10.1982, No 17, Foro italiano, 1983, II, 41.

19 Decision 86-224 DC, 23.1.1987, Journal officiel de la République française of 25.1.1987, p. 925.

20 Judgment of 22 October 1987 in Case 314/85 Foto-Frost v Hauptzotlaml Lübeck-Ost [ 1987] ECR 4199, paragraph 19.

21 Judgment of 7 July 1981 in Case 158/80 Rewe (butter cruises) [1981] ECR 1805.

22 Judgments in Case 45/76 Comet, supra, paragraph 16, in Case 33/76 Rewe, supra, paragraph 15, or 12 June 1980 in Case 130/79 Express Dairy Foods, supra, [1980] ECR 1887, paragraph 12, of 27 March 1980 in Case 61/79 Denkami italiano, supra, [1980] ECR 1205, paragraph 25 and of 10 July 1980 in Case 826/79 Mireco, supra, [1980] ECR 2559, paragraph 13.

23 Judgment of 5 February 1963 in Case 26/62 Van Gend & Loos [1963] ECR 1.