CASE LAW: Order of the Court in Case C-120/94 R, Commission of the European Communities v. Hellenic Republic, 1994 E.C.R. 1-3037. Interim Relief, Refusal of Interim Measures; Articles 224 and 225 EC Treaty

1 Colum. J. Eur. L. 134 (1994)

Jan Vanhamme. Researcher, Institute for European Law, Catholic University, Leuven, Belgium.

On February 16, 1994, the Greek government adopted unilateral measures against the former Yugoslav Republic of Macedonia (“FYROM”).’ The measures took the form of an embargo, especially directed at the port of Thessaloniki, preventing the movement of goods to and from the FYROM. The embargo was a reaction to the FYROM’s refusal to accede to Greece’s repeated requests that it not use the name “Macedonia,” that it remove a Greek symbol (the star of Vergina) from its national flag, and that it stop hostile propaganda and territorial claims against Greece. According to the Greek government, FYROM was systematically promoting the idea of a unified Macedonia, and thus threatening Greece’s sovereignty and territorial integrity.

Of course, any embargo imposed by a single Member State disturbs the Common Commercial Policy of the EC. This, however, does not automatically mean that it is incompatible with Community law. Article 224 of the EC Treaty permits a Member State to take unilateral measures “in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security,” albeit under the condition that the Member State tries to avoid, through consultation with the other Member States, negative effects on “the functioning of the common market.”

In light of this provision, Greece presented its measures as a reaction to a “serious international tension constituting a threat of war.”” In the other Member States, Greece’s characterization of the situation was widely considered to be exaggerated, and Greece found itself accused of abusing Article 224. In the absence of shelter by Article 224, the embargo plainly constituted an infringement of Article 113 of the Treaty (Common Commercial Policy) as well as of several Council regulations.’

Article 225, paragraph 2, of the Treaty specifically provides for actions in the Court of Justice against Member States for the improper use of the powers provided for in Articles 223 and 224 of the Treaty. That provision contains an explicit derogation from the ordinary procedures for instituting proceedings against a Member State; it provides that the Commission or a Member State may bring the matter directly before the Court of Justice, without having to follow the usual preliminary steps set out in Articles 169 and 170 of the Treaty.

The Commission sued Greece on April 22, 1994. Along with its action under Article 225, paragraph 2, the Commission filed an application for interim measures under Article 186 of the Treaty, in which it asked the Court to issue “an order requiring the Hellenic Republic to suspend, pending judgment in the main action, the measures adopted on February 16, 1994 with regard to the former Yugoslav Republic of Macedonia.”9 Greece argued that the application for interim measures should be declared inadmissible, since it was attached to an Article 225 proceeding, which could be expected to proceed so rapidly – in comparison to the generally more lengthy proceedings under Article 169 of the Treaty – as to render interim measures unnecessary. Greece further asserted that proceedings based on Article 225 necessarily pertain to delicate issues that require more detailed analysis than is normally possible in a proceeding for interim measures. The Court did not accept these arguments, finding in the general wording of Article 186 of the Treaty no room whatsoever for any distinctions along these lines.