Case C‑441/17 R

European Commission

v

Republic of Poland

(Interim relief — Application for interim measures — Directive 92/43/EEC — Conservation of natural habitats and of wild fauna and flora — Directive 2009/147/EC — Conservation of wild birds)

Summary — Order of the Court (Grand Chamber), 20 November 2017

1.        Application for interim measures — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Balancing of all the interests involved

(Art. 279 TFEU; Rules of Procedure of the Court of Justice, Art. 160(3))

2.        Application for interim measures — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Active forest management in the Białowieża forest, a Site of Community Importance and a Special Protection Area for Birds — Serious and irreparable environmental damage

(Art. 279 TFEU)

3.        Application for interim measures — Interim measures — Conditions for granting — Lodging of security — Conditions

(Art. 279 TFEU)

4.        Application for interim measures — Interim measures — Jurisdiction of the Court hearing the application for interim relief — Power to prescribe ancillary measures intending to ensure that the interim measures ordered are effective — Scope — Imposition of a periodic penalty payment if the relevant party fails to comply with the direction ordered

(Art. 2 TEU; Art. 279 TFEU)

1.      See the text of the decision.

(see paras 28-30)

2.      Concerning the urgency requirement, the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to ensure that there is no lacuna in the legal protection provided by the Court. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief.

It is for the party claiming such damage to establish its existence. While it is not necessary for it to be absolutely certain that the damage will occur, a sufficient degree of probability being enough, the applicant is nonetheless required to prove the facts which are considered to found the prospect of such damage.

With regard to the application for interim measures submitted by the Commission in the context of its action for failure to fulfil obligations against Poland, the urgency requirement is satisfied given that the active forest management operations in the Białowieża forest, a Site of Community Importance and a Special Protection Area for Birds, are likely to cause irreparable and serious damage to the environment. Indeed, once it has occurred, the damage caused by the felling and removal of trees would be impossible to rectify subsequently, should the Commission’s allegations concerning Poland’s failure to fulfil obligations be established. In addition, the seriousness of the damage alleged by the Commission is demonstrated by the fact that those operations, in view also of their scale and intensity, risk causing, if they are pursued, the irreversible transformation of a significant area of a natural forest into a harvested forest, risking the loss of the habitats of rare species.

(see paras 43-45, 59, 61)

3.      See the text of the decision.

(see paras 86, 87)

4.      Article 279 TFEU therefore confers on the Court the power to prescribe any interim measures that it deems necessary in order to ensure that the final decision is fully effective.

In that regard, once the matter is before it, the Court hearing the application for interim measures must satisfy itself that the measures that it is minded to order are sufficiently effective to achieve their aim. It is specifically for that purpose that Article 279 TFEU grants the Court a broad discretion, in the exercise of which it is empowered, inter alia, having regard to the circumstances of each case, to specify the subject matter and the scope of the interim measures requested, and also, if it deems appropriate, to adopt, where necessary of its own motion, any ancillary measure intended to guarantee the effectiveness of the interim measures that it orders.

In particular, the Court hearing an application for interim measures must be able to ensure the effectiveness of an order directed at a party pursuant to Article 279 TFEU, by adopting any measure intending to ensurethat the interim order is complied with by that party. Such a measure may entail, inter alia, provision for a periodic penalty payment to be imposed should that order not be respected by the relevant party.

Furthermore, the purpose of seeking to ensure that a Member State complies with interim measures adopted by the Court hearing an application for such measures by providing for the imposition of a periodic penalty payment in the event of non-compliance with those measures is to guarantee the effective application of EU law, such application being an essential component of the rule of law, a value enshrined in Article 2 TEU and on which the European Union is founded.

(see paras 97, 99, 100, 102)