شکل‌دهی به حقوق اتحادیه اروپا به سبک بریتانیایی: وکلای عمومی بریتانیا در دیوان عدالت اتحادیه اروپا

"In this book, leading scholars of EU law, judges, and practitioners unpack the judicial reasoning offered by the UK Advocates General in over forty cases at the Court of Justice, which have influenced the shape of EU law. The authors place the Opinions in the wider context of the EU legal order, and mix praise with critique in order to determine the true contribution of the UK Advocates General, before hearing the concluding reflections by the UK Advocates General themselves. The role of Advocates General at the Court of Justice of the European Union remains notoriously under-researched. With a few notable exceptions, not much ink has been spilled on analysing their contribution to the judicial discourse that emerges from the Court's Palais in Luxembourg. More generally, their impact on the shaping of EU law is only sporadically explored. This book fills the lacunae by offering an in-depth analysis of the way in which the UK Advocates General contributed to development of EU law during 47 years of the UK's membership of the EU. During their terms of office, Advocates General Jean-Pierre Warner (1973-1981), Gordon Slynn (1981-1988), Francis Jacobs (1988-2006), and Eleanor Sharpston (2006-2020) delivered over 1400 Opinions. This staggering contribution of the four individuals and their cabinets of legal secretaries was supplemented by an Opinion of a then Judge of the Court of First Instance, David Edward, who was called to act as an Advocate General in two joined cases in what is now the General Court. With the last UK Advocate General departing from the Court of Justice in September 2020, an important era has ended. With this watershed moment, it is apt to take a look back and critically analyse the contribution to development of EU law made by the UK Advocates General, and to elucidate the lasting impact they have had on the nature of EU law."-- Provided by publisher Shaping EU Law the British Way: UK Advocates General at the Court of Justice of the European Union Outline Table of Contents Detailed Table of Contents List of Contributors List of Abbreviations Acknowledgements Foreword Introduction I. Why UK Advocates General? II. Selection of Opinions III. What to Expect from this Book? PART I: SETTING THE SCENE 1. Let's Take the Canvass Out: Advocates General at the Court of Justice of the European Union I. Two Fundamental Questions II. Appointment of Advocates General III. The Role of Advocates General: Assist but Not Substitute IV. Seventy Years of Advocates General: Evolution through Decades V. The Possibility for a Judge to Act as an Advocate General in the General Court VI. Advocates General and Academia 2. Framing Exercises: The Role of the Advocates General I. Introduction II. Frame #1: A Legal System of Judges or Scholars III. Frame #2: Transparent vs. Opaque Judicial Decisions IV. Frame #3: Judicial Case Law VS. Judicial Interpretations V. Conclusions 3. Shaping EU Law: Ireland and the Common Law in Europe I. Introduction II. Ireland: the First Adventure of the Common Law; the Normans to Elizabeth III. The Common Law Settles in Ireland: Elizabeth to Victoria IV. The Common Law in Independent Ireland: 1922–1973 V. Ireland and UK join the European Communities: 1973 VI. The Common Law in the European Communities: Following Precedent VII. Analysis of Precedent at the European Court: Van Gend en Loos VIII. An Unpersuasive Opinion: Merck v Primecrown IX. Settled Case Law at the Court X. The British Have Gone: Left All Alone; The Precious Stone 4. Culture Clash? The UK Tradition of Open Justice and the Court of Justice of the European Union I. Introduction II. The Open Justice and the Principle in the UK Constitution III. Open Justice and Access to Justice through Legal Standing IV. Open Justice and Public Access to Court Documents V. Open Justice and the Naming of Litigants VI. Open Justice and Oral Hearings VII. Conclusion: Plato v Aristotle? 5. The History and Biographies of the UK Advocates General I. Introduction II. The Career Paths of the UK AGs at the Court III. The British AG's Contribution to European Legal Scholarship IV. Life After the Court V. Conclusions PART II: JEAN-PIERRE WARNER: THE EARLY DAYS OF COMMUNITY LAW (1973–1981) 6. Accession to the Communities, and Compensation under the Common Agricultural Policy: Opinion of Advocate General Warner in Ireland v Council I. Introduction II. Background, Context, and Facts III. The Opinion of AG Warner IV. Analysis 7. Horizontal Application of EU Law, Non-discrimination on Grounds of Nationality, and EU Sports Law: Opinion of Advocate General Warner in Walrave and Koch I. Introduction II. Background, Context, and Facts III. The Opinion of AG Warner IV. Analysis 8. Reconciling the Special Provision on State Monopolies with the General Provisions on the Free Movement of Goods: Opinion of Advocate General Warner in Manghera I. Introduction II. Background, Context, and Facts III. The Opinion of AG Warner IV. Analysis 9. Equivalence and Effectiveness in the Enforcement of EU Rights: Opinion of Advocate General Warner in Rewe I. Introduction II. Background, Context, and Facts III. The Opinion of AG Warner IV. Analysis 10. Previous Criminal Convictions and Public Policy Exceptions: Opinion of Advocate General Warner in Bouchereau I. Introduction II. Background, Context, and Facts III. The Opinion of AG Warner IV. Analysis 11. Rights of Undertakings in EU Antidumping Proceedings: Opinion of Advocate General Warner in Bearings I I. Introduction II. Background, Context, and Facts III. The Opinion of AG Warner IV. Analysis 12. Free Movement of Goods and the Public Morality Exception: Opinion of Advocate General Warner in Henn and Darby I. Introduction II. Background, Context, and Facts III. The Opinion of AG Warner IV. Analysis 13. An Expedient of Proceedings: Opinion of Advocate General Warner in Foglia v Novello I I. Introduction II. Background, Context, and Facts III. The Opinion of AG Warner IV. Analysis 14. Legal Professional Privilege in EU Competition Law: Opinions of Advocates General Warner and Slynn in AM&S Europe I. Personal Introduction II. Background, Context, and Facts III. The Opinions of AGs Warner and Slynn IV. Analysis PART III: GORDON SLYNN: EMBEDDING THE REVOLUTIONARY DOCTRINES (1981–1988) 15. Artificial Arrangements and References for a Preliminary Ruling: Opinion of Advocate General Slynn in Foglia v Novello II I. Introduction II. Background, Context, and Facts III. The Opinion of AG Slynn IV. Analysis 16. The Intrinsic Value of Part-time Work in the Construction of the Internal Market: Opinion of Advocate General Slynn in Levin I. Introduction II. Background and Context III. The Opinion of AG Slynn IV. Analysis 17. Free Movement of Goods and the Public Security Exception: Opinion of Advocate General Slynn in Campus Oil I. Introduction II. Background, Context, and Facts III. The Opinion of AG Slynn IV. Analysis 18. Ants Working Hard, and the Free Movement of Legal Services as Professional Activities: Opinion of Advocate General Slynn in Klopp I. Introduction II. Background, Context, and Facts III. The Opinion of AG Slynn 19. Blurring the Boundaries of the Free Movement of Goods: Opinion of Advocate General Slynn in Cinéthèque I. Introduction II. Background, Context, and Facts III. The Opinion of AG Slynn IV. Analysis 20. Formal-Style Reasoning and its Progeny: Opinion of Advocate General Slynn in Marshall I I. Introduction II. Background, Context, and Facts III. The Opinion of AG Slynn IV. Analysis 21. Free Movement of Goods and Double Standards in Public Morality: Opinion of Advocate General Slynn in Conegate I. Introduction II. Background, Context, and Facts III. The Opinion of AG Slynn IV. Analysis 22. To Beer, Or Not to Beer? That is the Public Health Question: Opinion of Advocate General Slynn in Commission v Germany (Beer Purity) I. Introduction II. Background, Context and Facts III. The Opinion of AG Slynn IV. Analysis PART IV: DAVID EDWARD: JUDGE ACTING AS ADVOCATE GENERAL IN THE COURT OF FIRST INSTANCE (1992) 23. Powers, Duties, and Responsibilities of the Commission When Dealing with Complaints about Infringements of EU Competition Law: Opinion of Judge Edward Acting as Advocate General in Automec and Asia Motor France I. Introduction II. Background, Context, and Facts III. The Opinion of Judge Edward Acting as Advocate General IV. Analysis PART V: FRANCIS JACOBS: FROM EUROPEAN COMMUNITIES TO EUROPEAN UNION (1988–2006) 24. The Rehabilitation of Trade Marks, the Demise of the Doctrine of Common Origin, and the Overruling of Prior Case Law: Opinion of Advocate General Jacobs in HAG II I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. Analysis 25. 'Civis Europeus Sum', Thirty Years On: Opinion of Advocate General Jacobs in Konstantinidis I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. Analysis 26. Don't Let Them Steal Our Music Away: Opinion of Advocate General Jacobs in the Legal Duet of Phil Collins and Cliff Richard I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. Analysis 27. The Relationship between the Action for Annulment and Preliminary Reference Procedures: Opinion of Advocate General Jacobs in TWD I. Introduction II. Background Issues III. The Opinion of AG Jacobs IV. Analysis 28. Ulysses Unbound? Political Questions, Judicial Answers, and the Rule of Law in EU Foreign Policy: Opinion of Advocate General Jacobs in Commission v Greece (FYROM) I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. Analysis 29. Effective Judicial Protection of EU Rights before National Courts: Opinion of Advocate General Jacobs in Van Schijndel I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. Analysis 30. The Meeting of International Sanctions and European Human Rights: Opinion of Advocate General Jacobs in Bosphorus I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. Analysis 31. The Game Over the Boards: Opinion of Advocate General Jacobs in Albany I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. The Court Does Not Follow AG Jacobs V. The EFTA Court's LO Case VI. The EFTA Court's Holship Case VII. The ECtHR's LO and NTF Ruling VIII. Conclusions 32. The Virtue of Moderation: Opinions of Advocate General Jacobs in Oscar Bronner and PreussenElektra I. Introduction II. Oscar Bronner III. PreussenElektra IV. Analysis 33. Protecting the Rights of Individuals: Opinion of Advocate General Jacobs in UPA I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. Analysis 34. Breaking New Ground on EU Fundamental Rights: Opinions of Advocate General Jacobs in Wachauf and Schmidberger I. Wachauf: Introduction II. The Opinion of AG Jacobs III. The Judgment IV. Analysis V. Schmidberger: Introduction VI. The Opinion of AG Jacobs VII. The Judgment VIII. Analysis 35. Restrictions on Advertising and the Free Movement of Goods and Services: Opinions of Advocate General Jacobs in Leclerc-Siplec, De Agostini, and Gourmet I. Introduction II. Background, Context, and Facts III. The Opinions of AG Jacobs IV. Analysis 36. Achtung Baby! Objectives of International Agreements Matter: Opinion of Advocate General Jacobs in Pokrzeptowicz-Meyer I. Introduction II. Background, Context, and Facts III. The Opinion of AG Jacobs IV. Analysis PART VI: ELEANOR SHARPSTON: THE LEGAL ORDER PRE-AND POST-LISBON (2006–2020) 37. When Security Trumped the Rule of Law: Opinion of Advocate General Sharpston in Heinrich I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 38. The Inconvenience of Names: Opinion of Advocate General Sharpston in Grunkin and Paul I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 39. Legislation, Interpretation, and Equal Treatment: Opinion of Advocate General Sharpston in Sturgeon I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 40. 'When Citizens Move, They Do So as Human Beings, Not as Robots': Opinion of Advocate General Sharpston in Ruiz Zambrano I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 41. Access to Administrative and Judicial Review in Public Interest Litigation: Opinion of Advocate General Sharpston in Slovak Bears I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 42. The Notion of 'Court or Tribunal of a Member State': Opinion of Advocate General Sharpston in Miles I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 43. Mutual Recognition, Mutual Trust, and EU Criminal Law: Opinion of Advocate General Sharpston in Radu I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 44. Discrimination on Grounds of Religion or Belief and Neutrality Requirements: Opinion of Advocate General Sharpston in Bougnaoui I. Introduction II. Background, Context, and Facts III. The Opinions of AGs Sharpston and Kokott IV. Analysis 45. EU Competence to Conclude Trade Agreements: Opinion of Advocate General Sharpston in Opinion 2/15 I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 46. Horizontal Direct Effect of Directives Reconsidered: Opinion of Advocate General Sharpston in Farrell II I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 47. The Rule of Law, Sincere Cooperation between Member States, and Solidarity: Opinion of Advocate General Sharpston in Temporary Relocation I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis and Reflection 48. Homophobic Speech and its Prohibition under EU Anti-discrimination Law: Opinion of Advocate General Sharpston in NH I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis 49. The Right to a Tribunal Established by Law: Opinion of Advocate General Sharpston in Simpson and HG I. Introduction II. Background, Context, and Facts III. The Opinion of AG Sharpston IV. Analysis PART VII: AFTERWORDS 50. Reflections of an Advocate General: 1988-2006 I. Introduction II. The Role of the Advocate General and the Question of Separate and Dissenting Opinions by Judges III. The Contribution of UK AGs: General Principles of Law, Including Fundamental Rights IV. Afterword 51. Reflections of a Judge Acting as Advocate General in the Court of First Instance: 1990-1992 I. Introduction II. The Difference Between Judgments and Opinions in the Luxembourg Courts III. Advocates General in the Court of First Instance IV. The Legal Background to Automec and Asia Motor France V. Two Points on the Court's Judgment VI. Postscript 52. 'Can't Those European Judges Think for Themselves?' An Afterword on Why the Court (Still) Needs its Advocates General I. Introduction II. So - Why Bother To Have Advocates General At All? III. Inside the Pressure Cooker IV. The Future - All About Resource Management? V. Concluding Observations PART VIII: EU LAW WITHOUT UK ADVOCATES GENERAL 53. Neither Advocates, Nor Generals: The UK Advocates General and the Shaping of EU Law I. Introduction II. The Contribution of UK AGs to the Shaping of EU Law III. The Jury is Out: Opinions of UK AGs IV. British and European: The Legacy of UK Advocates General Index