Textual Amendments
F1Sch. 1 (with appendices 1 and 2) substituted (1.1.1994) for Sch. 1 (with appendix) by S.I. 1993/1956, para. 2, Sch.1.
Sch. 1 (except rule 29.10) excluded (1.4.1997) by S.I. 1997/291, rule 3.24, Sch. 3
Sch. 1 extended (14.2.2000) by S.I. 2000/124, reg. 30(5)
38.1.(1)In this Chapter—
“appeal” includes an application for leave to appeal;
“the European Court” means the Court of Justice of the European Communities;
“reference” means a reference to the European Court for—
a preliminary ruling under Article [F2234] of the E.E.C. Treaty, Article 150 of the Euratom Treaty, or Article 41 of the E.C.S.C. Treaty; or
a ruling on the interpretation of the Conventions, as defined in section 1(1) of the M1Civil Jurisdiction and Judgments Act 1982, under Article 3 of Schedule 2 to that Act.
(2)The expressions “E.E.C. Treaty”, “Euratom Treaty” and “E.C.S.C. Treaty” have the meanings assigned respectively in Schedule 1 to the M2European Communities Act 1972.
Textual Amendments
F2Word in Sch. 1 rule 38.1(1)(a) substituted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(21)
Marginal Citations
M11982 c.27; section 1(1) was amended by section 2 of, and Schedule 2 by section 3 of, and Schedule 2 to, the Civil Jurisdiction and Judgments Act 1991 (c.12).
38.2.(1)A reference may be made by the sheriff of his own motion or on the motion of a party.
F3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Textual Amendments
F3Sch. 1 rule 38.2(2) omitted (2.10.2000) by virtue of S.S.I. 2000/239, para. 3(1)(22)
38.3.(1)Where the sheriff decides that a reference shall be made, he shall continue the cause for that purpose and, within 4 weeks after the date of that continuation, draft a reference.
[F4(1A)Except in so far as the sheriff may otherwise direct, a reference shall be prepared in accordance with Form E1, having regard to the guidance set out in the M3Notes for Guidance issued by the Court of Justice of the European Communities.]
(2)On the reference being drafted, the sheriff clerk shall send a copy to each party.
(3)Within 4 weeks after the date on which copies of the draft have been sent to parties, each party may—
(a)lodge with the sheriff clerk, and
(b)send to every other party,
a note of any adjustments he seeks to have made in the draft reference.
(4)Within 14 days after the date on which any such note of adjustments may be lodged, the sheriff, after considering any such adjustments, shall make and sign the reference.
(5)The sheriff clerk shall forthwith intimate the making of the reference to each party.
Textual Amendments
F4Sch. 1 rule 38.3(1A) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(23)
Marginal Citations
M3The Notes for Guidance are reproduced in the Parliament House Book.
38.4.(1)Subject to paragraph (2), on a reference being made, the cause shall, unless the sheriff when making such a reference otherwise orders, be sisted until the European Court has given a preliminary ruling on the question referred to it.
(2)The sheriff may recall a sist made under paragraph (1) for the purpose of making an interim order which a due regard to the interests of the parties may require.
38.5.(1)Subject to paragraph (2), a copy of the reference, certified by the sheriff clerk, shall be transmitted by the sheriff clerk to the Registrar of the European Court.
(2)Unless the sheriff otherwise directs, a copy of the reference shall not be sent to the Registrar of the European Court where an appeal against the making of the reference is pending.
(3)For the purpose of paragraph (2), an appeal shall be treated as pending—
(a)until the expiry of the time for making that appeal; or
(b)where an appeal has been made, until that appeal has been determined.