Provisional Measures – Disapplication of National Law as an Integral Part of the Principle of Effective Judicial Protection of the European Union Law

Abstract

The principle of loyal cooperation established in the EU law obliges the courts of the Member States of the EU to ensure the effective judicial protection of rights of persons stemming from the EU law. In the absence of harmonized norms of the civil procedure at the EU level, national courts are procedurally autonomous in enforcing judicial protection of the above mentioned rights, however, in applying national laws they shall comply with principles of equivalence and effectiveness of the EU law. In cases concerning violation of rights stemming from the EU law, courts of the Member States are faced with applications for the indication of provisional measures necessary to ensure effective judicial protection. The European Court of Justice treats such provisional measures as an integral part of the right to effective judicial protection. Compliance with the principle of effective judicial protection of the EU law requires national laws to guarantee the right to obtain provisional measures before national courts. In the light of the case law of the European Court of Justice, two situations where application of provisional measures may be granted by national judges shall be distinguished: (i) the first case concerns the suspension of the application of national laws incompatible with EU law pending decision on such compatibility, and (ii) the second one deals with the suspension of application of national measures implementing EU legal acts pending the decision on validity of such EU legal act. Under the first type of situations, national courts shall apply procedural guarantees embodied in the national laws. Under the second one, the ECJ has spelled out minimum uniform conditions making judicial protection effective: national procedural rules shall satisfy the principle of equivalence and the principle of effectiveness. In practice, a problem is frequently faced when such kind of provisional measures in not expressis verbis embodied in the text of national law. This hinders the right of the parties concerned to make use of such provisional measures significantly. Such hindrances limit the right of the parties concerned to effective judicial protection and may lead to violation of the EU law. For instance, The Code of Civil Procedure of Lithuania does not provide for special rules concerning suspension of national legal provisions in the above-mentioned situations. However, bearing in mind that the Court of Justice recognized the right to obtain interim measures before national courts to be an integral part of the EU concept of direct, immediate and effective judicial protection, national court should have the right to grant such provisional measures. Therefore, it is submitted that it would be appropriate for the national legislator of Lithuania to resolve the question on filling this gap in national legal system.