Le esigenze cautelari nel rinvio pregiudiziale: dalla tutela nel processo alla tutela mediante il processo

Abstract

One of the “outputs” of the primacy of EU law is the power of national courts to adopt any kind of interim measure, within the national proceeding pending before them, to preserve individual rights stemming from EU law, so as to prevent that the suspension of national proceedings, following the preliminary ruling, may negatively affect those rights. According to the Factortame doctrine, the adoption of interim measures in these cases is not only a power granted to national courts, but also a precise obligation stemming from the principle of loyal cooperation under the EU Treaties. In this framework, the aim of the work is to analyse – through the various judgments of the EU Court of Justice and in accordance with the EU Law – the various types (negative or positive) of interim measures that national judges are empowered to adopt, and in what circumstances and under what conditions an interim measure can be adopted. Furthermore, the article focuses also on the more recent case law regarding the possibility for national courts not to stay national proceedings during the preliminary ruling procedure, carrying on any kind of judicial activity they consider useful for the administration of justice; this can be regarded as another kind of interim protection of EU individual rights before national courts.