References to the European Court

The new edition of this definitive text provides a detailed narrative account of the procedure for referring preliminary references to the European Court for preliminary rulings, under Article 234 of the European Community Treaty and other treaties.
It has been thoroughly updated to include new case law, including a number of high profile cases, the new EC Treaty article numbering introduced by the Treaty of Amsterdam in 1999, and other treaty and rule developments.
* Provides expanded information on the practice of the other 14 EU member states besides the UK
* Provides a useful reference tool for EU member state litigators who are not European law specialists
* Includes practical tips, checklists and useful appendices, which include the full text of relevant legislation, treaties and rules

Chapter 1
The Preliminary Reference

INTRODUCTION
EVOLUTION OF THE PRELIMINARY REFERENCE
Community law in the national courts
An appellate system?
Precursors in the Member States
Article 41 ECSC
Article 234 EC
Article 68 EC
Article 35 TEU
Brussels Convention
Lugano Convention
Community Patent Convention
Rome Convention
Other Conventions
European Economic Area Agreement
References to the EFTA Court
References to the European Commission
The Treaty of Nice reforms
PRELIMINARY REFERENCES AND DIRECT ACTIONS
SIGNIFICANCE OF THE PRELIMINARY REFERENCE
Popularity of the procedure
Importance of preliminary rulings
NATIONAL VARIATIONS IN THE USE OF THE REFERENCE
Frequency of references
Courts most likely to refer
Post-accession behaviour
Forum-shopping


Chapter 2
Courts and Tribunals Entitled to Refer

INTRODUCTION
WHETHER A "COURT OR TRIBUNAL"
The Criteria
Criticism of the criteria
Application of the criteria
LOCATION OF COURT OR TRIBUNAL
The Member States
French overseas departments
Overseas countries and territories
Other European territories
Isle of Man and Channel Islands
International courts
Courts of non-Member States
COURTS AND TRIBUNALS WITH NO JURISDICTION
Improperly constituted court or tribunal
Court or tribunal with limited jurisdiction
NON-ARTICLE 234 REFERENCES
Article 35 TEU
ECSC and Euratom Treaties
Brussels Convention
Community Patent Convention
Rome Convention

Chapter 3
Jurisdiction to Refer

INTRODUCTION
PROVISIONS OF COMMUNITY LAW
The Treaties
Conventions between the Member States
Acts of the institutions of the Community
Acts of the European Central Bank
Statutes of bodies established by an act of the Council
International agreements of the Community
Agreements to which the Community is not a party
General principles of law
Provisions of domestic law
Relevance of direct effect
INTERPRETATION AND VALIDITY
Interpretation and effect
Challenges to validity
Factual determinations
RAISING THE QUESTION
DECISION NECESSARY FOR JUDGMENT
"Decision"
"Necessary"
"To enable it to give judgment"
NON-ARTICLE 234 REFERENCES
ECSC and Euratom Treaties
Article 35 TEU
Brussels Convention
Community Patent Convention
Rome Convention

Chapter 4
Impermissible References

RESTRICTING ACCESS TO THE EUROPEAN COURT
POSSIBLE GROUNDS FOR DECLINING JURISDICTION
Referring body lacks power to refer
Ex parte references
Questions do not concern Community law
Irrelevant questions
Failure to consider relevance of questions
Settlement of main proceedings
No real dispute / hypothetical issue
Referring court determining validity of foreign law
Question relating to conduct of non-party
Inadequate statement of facts or national law
Political question
Conflict with Article 226 proceedings
Conflict with Article 230 EC

Chapter 5
The Exercise of Discretion

WHETHER TO REFER: GENERAL APPROACH
Guidance of the European Court
Guidance of the United Kingdom courts
WHETHER TO REFER: SPECIFIC FACTORS
Difficulty of the point
The court best fitted to decide
Importance of the point
Delay
Overloading the European Court
Cost of obtaining a ruling
Question already pending before the European Court
Wishes of the parties
Ulterior purpose
WHETHER TO REFER: QUESTIONS OF INVALIDITY
Power reserved to the European Court
Extent of the duty to refer
Questions of invalidity: United Kingdom case law
WHETHER TO REFER: QUESTIONS OF DIRECT EFFECT
WHEN TO REFER: FIRST INSTANCE OR APPEAL?
Guidance of the European Court
Guidance of the United Kingdom courts
WHEN TO REFER: THE IMPORTANCE OF FINDING THE FACTS
Guidance of the European Court
Guidance of the United Kingdom courts

Chapter 6
Courts of Last Instance

INTRODUCTION
COURTS FALLING WITHIN ARTICLE 234(3)
Guidance of the European Court
United Kingdom case law
Non-appealable interim judgments
EXCEPTIONS TO THE DUTY TO REFER
Acte ÚclairÚ
Acte clair
The future of the CILFIT guidelines
NON-ARTICLE 234 REFERENCES
Title IV of the EC Treaty
Article 35 of the TEU
Euratom Treaty
Brussels Convention
Community Patent Convention
Rome Convention
Other Conventions
CONSEQUENCES OF FAILURE TO REFER

Chapter 7
Making a Reference

INTRODUCTION
MANNER OF APPLICATION FOR REFERENCE
High Court and Court of Civil Appeal
County Court
Crown Court and Court of Criminal Appeal
Magistrates' Courts and tribunals
Scottish Courts
Northern Ireland Courts
House of Lords
THE ORDER FOR REFERENCE
CONTENT AND STRUCTURE OF THE REFERENCE
Purpose
Form
Drafting style
THE QUESTIONS
Number and scope of questions
Factual background
Clarity and precision
Division of jurisdiction
OTHER DOCUMENTS
COSTS
PUBLIC FUNDING
INTERIM RELIEF
Guidance of the European Court
National measure allegedly in breach of Community law
Community measure allegedly invalid
Practice of the United Kingdom courts
National law or Community law test?
APPEALS
Appeals as a matter of Community law
Appeals under United Kingdom law
TRANSMISSION TO LUXEMBOURG

Chapter 8
The European Court

INTRODUCTION
Statute and Rules of Procedure
ORGANISATION OF THE EUROPEAN COURT
Location of the Court
Court sessions
Court staff
Court facilities
COMPOSITION OF THE COURT
The judges
The advocates general
Full court and chambers

Chapter 9
Participants in the Reference

INTRODUCTION
PARTIES TO THE MAIN ACTION
Eligibility to participate
Role of the parties
INTERVENERS
Role of interveners
The Commission as intervener
The Council as intervener
European Parliament and ECB as interveners
Member States as interveners
Other interveners
REPRESENTATION
Rights of audience
Immunities and privileges
Legal professional privilege
Duties of lawyers to the Court
LEGAL AID
THE LANGUAGE OF THE PROCEEDINGS

Chapter 10
The Written Procedure

INTRODUCTION
REGISTRATION OF THE REFERENCE
NOTIFICATION OF THE REFERENCE
WRITTEN OBSERVATIONS
Purpose of written observations
Time limits
Lodging observations
Annexes
Language
Formalities
Written observations: practical hints
CIRCULATION OF WRITTEN OBSERVATIONS
PRELIMINARY REPORT
WRITTEN QUESTIONS

Chapter 11
The Oral Procedure

SETTING THE CASE DOWN
THE ORAL HEARING
The decision to have an oral hearing
Whether to attend an oral hearing
The purpose of the oral hearing
Notification of the oral hearing
Report for the hearing
Organisation of the hearing
Oral submissions
Interpretation
Documents in aid of submissions
Questions from the Court
Replies
Transcript of hearing
ADVOCATE GENERAL'S OPINION
FURTHER PROCEDURAL STEPS

Chapter 12
Miscellaneous Procedures

JOINDER OF CASES AND JOINT HEARINGS
Power of joinder
Effects of joinder
Conditions for joinder
Joinder with direct actions
Arguments against joinder
Separation of joined cases
PARALLEL PROCEEDINGS IN THE COURT OF FIRST INSTANCE
SEEKING CLARIFICATION FROM THE REFERRING COURT
INTERLOCUTORY APPLICATIONS
DISMISSAL OF REFERENCES BY ORDER
Refusal of jurisdiction
Simplified procedure
INTERIM RELIEF
EXPEDITION
Accelerated procedure
Grant of priority
DEF