Background

(a) EU Legislation

Since the turn of the Millennium, a form of European Union legislation known as the ‘optional instrument’ has been on the rise. Although this kind of legislative instrument was actually first contemplated just a few years after the inception of the European project itself, and the first official proposal for such an instrument was put forth back in 1970, by the end of the twentieth century only three such instruments had seen the light of day, in two areas of European law (namely company law and intellectual property law). Since then, however, this particular legislative approach of the EU has increased both in prevalence and in reach. The EU legislator has introduced more optional instruments in the fields of company and intellectual property law, as well as in other areas, such as procedural law, and it has also made formal proposals for various others.

Optional Instruments (OIs) of the European Union are legislative instruments that create legal regimes available throughout the EU for private actors (i.e. natural and/or legal persons) to make use of if they so choose. Their existence is not new. The first such Optional Instrument, the Regulation on the European Economic Interest Grouping (EEIG), was adopted back in 1985. This established a new European corporate entity in the company law of the Member States, which private actors could form, and which would be applicable only (or at least primarily) to those private actors that opted to do so. Then, just under a decade later, the EEIG was followed by the adoption of the Regulation on the Community Trade Mark (CTM) at the end of 1993, and the Regulation on the Community Plant Variety Right (CPVR) in 1994, each of which introduced a new European intellectual property right recognized in all of the Member States that private actors can obtain. Yet, although the European Commission had put forward a number of other proposals for legislation creating OIs in that time, by the year 2000 these remained the only Community OIs that had been enacted.

In the course of recent years, however, this legislative landscape has changed quite drastically. First of all, the 2000s saw the creation of a further six EU OIs.