Legal Certainty in the Preliminary Reference Procedure

John Cotter, Lecturer in Law, School of Law, Keele University, UK

‘Scholars of EU law have long neglected the works of American legal theorists, and the value they possess for establishing stronger insights into the EU legal order. In utilising the work of Llewellyn, and applying it to a European judicial setting, this book by Cotter is a remarkable piece of scholarship in EU legal theory, and on the judicial nature of the Court of Justice of the European Union.’

• Contents: Preface PART I INTRODUCTION 1. Obstacles to Legal Certainty in the Preliminary Reference Procedure 2. ‘Steadying Factors’ in the Article 267 TFEU Preliminary Reference Procedure 3. ‘The Argument and ‘First Principles’ PART II INTERNAL EXTRA-LEGAL STEADYING FACTORS 4. The Steadying Effect of ‘Law-Conditioned Officials’ 5. ‘The Judges of the Court of Justice and ‘Law Conditioning’ PART III EXTERNAL EXTRA-LEGAL STEADYING FACTORS 6. The Steadying Effect of an Independence–Accountability Balance: A Hypothesis 7. ‘Susceptibility to Countermeasures for ‘Scenario 1’ (‘Legal and Acceptable’) Rulings 8. Susceptibility to lawful countermeasures for ‘scenario 2’ (‘legal’, but ‘unacceptable’) rulings 9. Susceptibility to Unlawful Countermeasures for ‘Scenario 2’ (‘Legal’, but ‘Unacceptable’) Rulings 10. Susceptibility to Countermeasures for ‘Scenario 3’ (‘Illegal’, but ‘Acceptable’) and ‘Scenario 4’ (‘Illegal’ and ‘Unacceptable’) Rulings PART IV PROCEDURAL EXTRA-LEGAL STEADYING FACTORS 11. The Order for Reference as ‘Steadying Factor’ I: ‘Issues Limited, Sharpened, and Phrased in Advance’ 12. The Order for Reference as ‘Steadying Factor’ II: ‘A Frozen Record from Below’ 13. The Steadying Effect of Argument before the Court of Justice 14. The Steadying Effect of ‘A Known Bench’ 15. Steadying Factors in Deliberative and Decision-making Procedures 16. Conclusion Bibliography Index