INTRODUCTION

Whereas the first and second set of questions outlined at the start of (and addressed in) the previous chapter are essentially normative in character, the third set – to be discussed in this chapter – are best categorized as explanatory, since they enquire about the apparent divergences in the levels of usage or ‘attractiveness’ of different EU optional instruments and the factors behind this. It is true that, as we noted towards the end of the preceding chapter, this issue also has normative implications, as many of the arguments that make up the case for EU OIs depend in one way or another on private actors using the OIs that are enacted. But this is nonetheless a distinct type of question, which requires the elaboration of an explanatory rather than a normative framework, in order to explain why it might be that some EU OIs have apparently proved less attractive to eligible private actors (i.e. been opted into less) than others. So – for both of these reasons, in fact – the issue of usage of EU OIs is an especially important one that merits a separate analysis.

Certainly, it can be argued that some EU OIs have proven more attractive to eligible private actors than others, taking the number of ‘opt-ins’ by private actors as an indicator of attractiveness. For example, a brief comparison between the Community Trade Mark (CTM) and the European Company (SE) shows that the total number of CTMs registered with the Office for Harmonization in the Internal Market (OHIM) in its first five years of operation amounted to around 100,000, while in the first five years or so of operation of the European Company Regulation a total of 595 SEs had been registered in the whole of the EU (not to mention the EEA); and whereas the total number of CTM registrations surpassed one million in 2014, the number of SEs (albeit over a shorter period) had reached a total of 2,125 by 2014. Of course, there is no reason to expect the number of registrations of a new company form to match those of a new intellectual property right (and particularly not one suitable mainly for large businesses), but, even with this in mind, these figures do hint at a notable difference in the respective popularity of the CTM and the SE.