References to the European Court

목차 (Table of Contents)

• CONTENTS
• Foreword = ⅴ
• Preface = ⅸ
• Tables of Cases
• Alphabetical List of Cases before the European Courts = xxvii
• Numerical List of Cases before the European Court of Justice = xliii
• List of National Cases = lix
• Tables of Legislation
• European Union Treaties = lxvii
• Regulations, Directives, Council Decisions and Notices = lxxi
• Rules of Procedure = lxxiii
• National Legislation = lxxv
• International Treaties and Conventions = lxxvii
• Chapter 1 The Preliminary Reference = 1
• Introduction = 1
• Evolution of the Preliminary Reference = 3
• Community law in the national courts = 4
• An appellate system? = 5
• Precursors in the Member States = 5
• Article 41 ECSC = 6
• Article 177 E.C.= 7
• Article 150 Euratom = 11
• Mutual Recognition of Companies and Legal Persons = 11
• Brussels Convention = 11
• Lugano Convention = 13
• Community Patent Convention = 13
• Rome Convention = 15
• European Economic Area Agreement = 15
• References to the EFTA Court = 16
• References to the European Commission = 17
• Preliminary References and Direct Actions = 18
• Significance of the Preliminary Reference = 20
• Popularity of the procedure = 20
• Importance of preliminary rulings = 21
• National Variations in the Use of the Preliminary Reference = 24
• Frequency of preliminary references = 25
• Nature and quality of preliminary references = 27
• Chapter 2 Courts and Tribunals Entitled to Refer = 29
• Introduction = 29
• Nature of Court or Tribunal = 29
• Statutory tribunals = 31
• Governmental bodies = 32
• Self-regulating professions = 34
• Arbitrators = 36
• Investigating judges = 37
• Other adjudicative bodies = 38
• Location of the Court of Tribunal = 39
• The Member States = 40
• French overseas departments = 40
• Overseas countries and territories = 40
• Other European territories = 41
• Isle of Man and Channel Islands = 41
• International courts = 42
• Courts of non-Member States = 42
• Courts and Tribunals with no Jurisdiction = 43
• Improperly constituted court or tribunal = 44
• Court or tribunal with limited jurisdiction = 45
• Non-Article 177 References = 48
• ECSC and Euratom Treaties = 48
• Brussels Convention = 48
• Community Patent Convention = 49
• Rome Convention = 49
• Chapter 3 jurisdiction to refer = 50
• Introduction = 50
• Provision of Community Law = 50
• The Treaties = 51
• Conventions between the Member States = 53
• Acts of the institutions of the Community = 54
• Acts of the European Central Bank = 59
• Statutes of Bodies established by an act of the Council = 59
• International agreements of the Community = 59
• Agreements to which Community is not a Party = 61
• General principles of law = 61
• Provisions of domestic law = 62
• Relevance of direct effect = 66
• Interpretation and Validity = 67
• Interpretation and effect = 67
• Challenges to validity = 69
• Factual determinations = 73
• Raising the Question = 79
• Considering a Decision to be Necessary for judgment = 80
• "Decision" = 81
• "Necessary" = 83
• "To enable it to give judgment" = 88
• Non-Article 177 References = 91
• ECSC and Euratom Treaties = 91
• Brussels Convention = 92
• Community Patent Convention = 93
• Rome Convention = 94
• Chapter 4 impermissible References = 95
• Restricting Access to the European Court = 95
• Possible grounds for Declining Jurisdiction = 97
• Referring body lacks power to refer = 97
• Ex parte references = 98
• Questions do not concern Community law = 100
• Irrelevant questions = 101
• Failure to consider relevance of questions = 104
• Settlement of main proceedings = 105
• No real dispute = 106
• Referring court determining validity of foreign law = 109
• Question relating to conduct of non-party = 110
• Inadequate statement of facts or national law = 110
• Political question = 112
• Conflict with Article 169 proceedings = 114
• Conflict with Article 173 E.C.= 116
• Chapter 5 The Exercise of Discretion = 120
• Introduction = 120
• Whether to Refer: General Approach = 120
• Guidance of the European Court = 120
• Guidance of the United Kingdom courts = 121
• Whether to Refer: Guidelines = 123
• Difficulty of the Point = 123
• The Court best fitted to decide = 128
• Importance of the point = 130
• Delay = 130
• Overloading the European Court = 131
• Cost of obtaining a ruling = 132
• Question already pending before the European Court = 132
• Wishes of the parties = 134
• Ulterior purpose = 135
• Whether to Refer: Questions of Invalidity = 135
• Power reserved to the European Court = 135
• Extent of the duty to refer = 137
• Questions of invalidity: United Kingdom case law = 140
• Whether to Refer: Questions of Direct Effect = 140
• Whether to Refer: Questions of Competition Law = 141
• When to Refer: First Instance or Appeal? = 143
• Guidance of the European Court = 144
• Guidance of the United Kingdom Courts = 145
• When to Refer: The Importance of Finding the Facts = 150
• Guidance of the European Court = 150
• Guidance of the United Kingdom Courts = 152
• Chapter 6 Courts of Last Instance = 154
• Introduction = 154
• Courts Falling Within Article 177(3) = 155
• Guidance of the European Court = 155
• United Kingdom case law = 156
• Non-appealable interlocutory judgments = 161
• Exceptions to the Duty to Refer = 163
• Acte $$\acute e$$clair$$\acute e$$ = 164
• Acte clair = 165
• The future of the CILFIT guidelines = 170
• Non-Article 177 References = 171
• ECSC and Euratom Treaties = 171
• Brussels Convention = 172
• Community Patent Convention = 172
• Rome Convention = 173
• Consequences of Failure to Refer = 173
• Chapter 7 Making a Reference = 176
• Introduction = 176
• Manner of Application for Reference = 176
• High Court and Court of Civil Appeal = 176
• County Court = 177
• Crown Court and Court of Criminal Appeal = 178
• Magistrates' Courts and tribunals = 178
• Scottish Courts = 179
• Northern Ireland Courts = 181
• House of Lords = 182
• The Order for Reference = 183
• The Questions = 184
• Number and scope of questions = 185
• Factual background = 185
• Clarity and precision = 186
• Division of jurisdiction = 187
• Judgment or Statement of Case = 188
• Purpose = 188
• Form = 189
• Judgment or statement of case? = 190
• Contents = 190
• Other documents = 191
• Costs = 192
• Legal Aid = 193
• Interim Relief = 194
• Guidance of the European Court = 194
• Practice of the United Kingdom Courts = 197
• Appeals = 201
• Appeals as a matter of Community law = 201
• Appeals under United Kingdom law = 203
• Transmission to Luxembourg = 208
• Chapter 8 The European Court = 210
• Introduction = 210
• Statutes and Rules of Procedure = 210
• Organisation of the European Court = 211
• Location of the Court = 211
• Court sessions = 211
• Court staff = 212
• Court facilities = 213
• Composition of the Court = 216
• The Judges = 216
• The Advocates General = 220
• Full Court and chambers = 222
• Chapter 9 Participants in the Reference = 224
• Introduction = 224
• Parties to the Main Action = 224
• Eligibility to participate = 224
• Function of the parties = 225
• Interveners = 226
• Function of interveners = 227
• The Commission as intervener = 227
• The Council as intervener = 228
• The European Parliament as intervener = 228
• Member States as interveners = 229
• Other Interveners = 234
• Interveners in ECSC cases = 235
• Representation = 235
• Rights of audience = 235
• Immunities and privileges = 238
• Legal professional privilege = 239
• Duties of lawyers to the Court = 239
• Legal Aid = 240
• The Language of the Proceedings = 241
• Chapter 10 The Written Procedure = 243
• Introduction = 243
• Pegistration of the Reference = 244
• Notification of the Reference = 244
• Written Observations = 245
• Purpose of written observations = 245
• Time limits = 246
• Annexes = 247
• Language = 248
• Formalities = 248
• Written observations: practical hints = 249
• Circulation of Written Observations = 251
• Preliminary Report = 252
• Chapter 11 The Oral Procedure = 253
• Setting the Case Down = 253
• The Oral Hearing = 253
• Is an oral hearing required? = 253
• The purpose of the oral hearing = 254
• Notification of the oral hearing = 255
• Report for the hearing = 255
• Organisation of the hearing = 256
• Oral submissions = 259
• Interpretation = 261
• Documents in aid of submissions = 263
• Questions from the Court = 263
• Replies = 265
• Advocate General's Opinion = 265
• Further Procedural Steps = 266
• Chapter 12 Miscellaneous Procedures = 267
• Joinder of Cases and joint Hearings = 267
• Power of joinder = 267
• Effects of joinder = 267
• Conditions for joinder = 268
• Joinder with direct actions = 269
• Arguments against joinder = 269
• Separation of Joined cases = 270
• Interlocutory Applications = 270
• Dismissal of References by Order = 272
• Refusal of jurisdiction = 272
• Questions already decided = 273
• Interim Relief, Expedition and Deferment = 273
• Interim relief = 273
• Expedition = 274
• Deferment = 275
• Resolving Questions of Fact = 275
• Evidence submitted by the parties = 275
• Requests for documents and information = 276
• Preparatory inquiries = 276
• Letters rogatory = 281
• Supplementary written observations = 281
• Withdrawal of Reference = 282
• Initiative of the referring court = 282
• Initiative of an appellate court = 282
• Initiative of the European Court = 283
• Initiative of the parties = 283
• Chapter 13 The Ruling and its Sequel = 285
• Deliberations of the Court = 285
• Formal requirements = 286
• Judgment of the Court = 286
• Unrequested Rulings and Obiter Dicta = 288
• The General Rule = 288
• Exceptions = 288
• Costs = 292
• Correction and Clarification of judgments = 293
• The range of procedures = 293
• Exceptional review procedures = 295
• The slip rule = 295
• Supplementing a judgment = 295
• Conclusion = 296
• National Procedure After the Ruling = 296
• Further References = 297
• Chapter 14 The Effect of the Ruling = 300
• Introduction = 300
• Authority of a Preliminary Ruling = 300
• Effect of ruling on the European Court = 300
• Effect of ruling on the referring court = 303
• Effect of ruling on parties to the case = 306
• Effect of ruling on non-referring courts = 307
• Effect of ruling on non-parties = 315
• Effect of ruling on Community institutions = 316
• Effect of ruling on Member States = 317
• The Temporal Effect of the Ruling = 317
• The general rule: effect ex tunc = 317
• Limitations imposed by national law = 318
• Temporal Restrictions imposed by the European Court = 318
• Can a Preliminary Reference be Made? = 324
• The Progress of a Preliminary Reference Procedural Checklist = 325
• Precedents = 327
• A. Requests made for preliminary reference = 327
• B. Orders for reference = 329
• C. Statement of case = 334
• D. Written observations = 338
• E. Order concluding proceedings-High Court = 341
• Appendix 1 E.C. Treaty Articles = 343
• Appendix 2 ECSC Treaty Articles = 353
• Appendix 3 Euratom Treaty Articles = 359
• Appendix 4 Brussels Convention Protocol = 366
• Appendix 5 Rome Convention Protocols = 369
• Appendix 6 Lugano Convention Protocol = 375
• Appendix 7 Convention on Mutual Recognition Protocol = 377
• Appendix 8 Community Patent Convention = 380
• Appendix 9 European Economic Area Agreement = 385
• Appendix 10 Statute of the Court of Justice of the E.C. = 387
• Appendix 11 Statute of the Court of Justice of the ECSC = 400
• Appendix 12 Statute of the Court of Justice of Euratom = 416
• Appendix 13 Rules of Procedure of the Court of Justice of the European Communities = 430
• Appendix 14 Supplementary Rules of Procedure of the Court of Justice of the European Communities = 476
• Appendix 15 Instructions to the Registrar of the Court of Justice of the European Communities = 481
• Appendix 16 Notes for the Guidance of Counsel at Oral Hearings = 489
• Appendix 17 Rules of the Supreme Court, Ord. 114 = 493
• Appendix 18 Practice Note (Chancery Division: Reference to European Court) = 495
• Appendix 19 County Court Rules, Ord. 19, r.11 (England and Wales) = 496
• Appendix 20 Crown Court Rules, r.29 = 497
• Appendix 21 The Criminal Appeal (References to the European Court) Rules 1972 = 498
• Appendix 22 Civil Legal Aid (General) Regulations, reg. 51 = 499
• Appendix 23 Act of Adjournal (Consolidation) 1988, rr.63-67, 113-118 = 500
• Appendix 24 Court of Session Rules 1994 = 505
• Appendix 25 Sheriff Courts (Scotland) Act 1907 = 509
• Appendix 26 Rules of the Supreme Court, Ord. 114 = 511
• Appendix 27 County Court Rules, Ord. 23 = 513
• Appendix 28 Crown Court Rules (Northern Ireland), rr.39-42 = 515
• Appendix 29 Preliminary References by Member State, 1989-1993(see also Preface) = 516
• Index = 517