欧共体法律中的暂定措施.doc

INTERIM MEASURES IN EC LAW: Towards plete and Autonomous System of Provisional Judicial Protection before National Courts?
Sergio Ariel Apter
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Abstract
Two situations can be distinguished in the case law of the European Court of Justice on interim relief granted by national judges: (i) a Factortame-type situation (after the name of the case known as Factortame), concerning the suspension of enforcement of national legal provisions patible munity law, and (ii) a .-type situation (after the initials of Zuckerfabrik, Atlanta and Port), dealing with the suspension of enforcement of national measures munity Regulations and positive interim orders disapplying such regulations.
Factortame ratifies the idea pliance with the principle of effective judicial protection munity law rights requires immediate availability of a remedy, pending the determination of the substance of a case. Factortame recognizes munity law right to interim legal protection, regardless of the authority against which the relief is granted and the means through which such protection is provided. . provide the foundations of munity law right to interim legal protection where the validity munity regulations is challenged.
In Factortame, national courts? jurisdiction to grant interim measures is based directly munity law. The same applies to a .-type situation where the validity of munity act is in issue.
So far as the exercise of the power to grant interim measures is concerned, under a Factortame-type situation, national courts apply domestic law requirements and conditions. Under a .-type s