INTRODUCTION

JURISPRUDENCE AND A EUROPEAN CIVIL CODE

Since 1980 European scholars of civil and comparative law have been working on laying the foundations of a European Civil Code, or at any rate a European Code of Contract Law.

In 1989 the European Parliament called for the first time on the Commission to start work on drafting a common private law code. The Parliament stated that the harmonisation of certain sectors of private law was vital to the completion of the internal market and that the unification of large parts of private law in the form of a European private law code was the most effective harmonisation method for meeting the legal needs of the Union within a large frontier-free market. The repeated resolutions eventually resulted in an initiative of the Commission, which mentions the various academic projects aimed at the objective proposed by the Parliament, the most important being the Principles of European Contract Law; work on this project had started around 1980 and the first version was published in 1995. A European code in any form is indeed not conceivable without extensive preliminary academic work. In the following I will briefly discuss the various academic activities carried out in Europe, partly in response to resolutions of the Parliament.

ACADEMIC PREPARATION

A first precondition for the development of a European private law is the existence of academic literature describing trends and elements that are common to the various major European legal systems, including their legal history backgrounds. An impressive representative of the ‘ius commune’ approach based on legal history is Reinhard Zimmermann's monumental The Law of Obligations. Roman Foundations of the Civilian Tradition (1990), which, taking Roman law as the starting point, describes the development of Roman legal institutions in modern legal systems.

Among the literature which directly addresses current law, three standard works are particularly worth mentioning: Hein Kötz, Europäisches Vertragsrecht (2. Auflage, 2015); Christian von Bar, Gemeineuropäisches Deliktsrecht, Band I and II (1996 and 1999) (The Common European Law of Torts, Vols. I and II, 1998 and 2000); and Peter Schlechtriem, Restitution und Bereicherungsrecht, Band I and II (2000 and 2001).

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.

INTRODUCTION

The Universal Periodic Review or UPR could be called a ‘peer-review accountability mechanism'. In this accountability process States act as accountholders as well as duty-bearers. The UPR is a unique accountability mechanism: the regional human rights systems do not provide one. The African Union's (AU) African Peer Review Mechanism (APRM) is similar but much broader. The APRM was developed in 2002 in the framework of the New Partnership for Africa's Development (NEPAD). NEPAD is the AU policy framework on development for the African continent. NEPAD's main objectives, according to the participating AU heads of State, are ‘to eradicate poverty and to place our countries, individually and collectively, on a path of sustainable growth and development and, at the same time, to participate actively in the world economy and body politic on equal footing'. The APRM mechanism consists of a voluntary review by a State party to the APRM and by an international review team covering four governance areas: economic governance and management, democracy and political governance, corporate governance and socio-economic development. Human rights can thus certainly be addressed in this review but they are not its main focus.

THE UNIVERSAL PERIODIC REVIEW PROCESS OF THE HUMAN RIGHTS COUNCIL

The General Assembly (GA) established the Human Rights Council in 2006 as a subsidiary body through its resolution 60/251. The Human Rights Council, which replaced the former Commission on Human Rights, was instituted through the reform process of the UN human rights machinery and established in response to the criticism that the Commission on Human Rights had become too politicized. This critique still appears undeserved as the Commission on Human Rights was never meant to be an independent or apolitical body; it was supposed to be a political body. Owing to its composition, human rights issues of course were very easily politicized and mobilized in the interest of the State. The Human Rights Council is equally politicized; this is inevitable as it is an inter-governmental body, not an independent organ. The fear amongst many States and scholars was that the revision of the various procedures by the Human Rights Council would have a retrogressive effect. Indeed, notwithstanding the objective of improving whenever there is a revision of procedures, there is a risk of a weakening of the procedure.

INTRODUCTION

The first accountability relationship between the various human rights bodies and a State party to the applicable human rights treaty is the State reporting procedure. This procedure is a genuine accountability procedure as it is i) an interactive process between a power wielder (the State party) and the accountholder (the UN or regional treaty body) ii) where the power wielder is under the obligation to provide information concerning its conduct to the accountholder and iii) can face consequences if it has failed to comply with its obligations under the treaty.

In this chapter we will mainly focus on the UN's procedures (section 3.1.1), more particularly on the State reporting procedures of the CESCR and the CRC Committee. Both committees are reviewed as they have paid the most attention to extraterritorial obligations in the field of ESC rights. The state reporting procedures in the regional systems (sections 3.1.2-3.1.4) have similar characteristics and restrictions and so these will not be rehearsed extensively. State reports in the regional procedures have also not dealt significantly with extraterritorial or transnational issues. The analysis of practice (section 3.2) is thus predominantly undertaken at the level of the UN bodies.

STATE REPORTING PROCEDURES IN THE UN TREATY BODY SYSTEM

Looking at the history of the UN treaty bodies, we find that in the beginning a State reporting procedure, in particular the practice of concluding observations, did not exist. Today, this is the chief accountability procedure in the treaty system but only in the 1990s did treaty bodies start to make concluding observations on State reports. O'Flaherty indicates that ‘the treaty bodies, having sequentially commenced the practice of issuing concluding observations, tended to follow more or less the models first devised by CESCR and the HRC'. The current UN Secretary General found that a State reporting procedure is embedded in States’ obligations to respect, protect and fulfil the rights set out in the treaties. This means that States that have ratified a (human rights) treaty are made accountable to the other State parties to that treaty. This recognition is also reflected in the inter-State complaint procedure (see infra, section 4.7).

PROCEDURES

THE INQUIRY PROCEDURE OF THE UN TREATY BODIES

The inquiry procedure is the third and last accountability mechanism present in the treaty body system. Some scholars have argued that it is the most adequate mechanism for addressing violations of an extraterritorial nature. Article 11 of the OP-ICESCR stipulates:

The OP-CRC in its Article 13, as well as the OP-CRPD in its Article 6, contains identical provisions to those of Article 11 OP-ICESCR. As the above provision indicates, the accountability procedure provides for an interactive and collaborative process between the accountholder (the relevant treaty body) and power wielder (the State under inquiry).

The inquiry procedure contains several distinctive features which are particularly relevant when addressing extraterritorial violations. First of all, the provisions of the various inquiry procedures do not include any reference to jurisdiction. Although the inclusion of a reference should not be problematic when interpreted adequately (see infra, Part III), its absence might facilitate the submission of a complaint involving extraterritorial violations in the sense that it avoids any discussion on the concept of jurisdiction. Secondly, the inquiry procedure is only concerned with grave or systematic violations of ESC rights. This is a rather high threshold and thus excludes a lot of potential cases, including extraterritorial ones, as they will not reach this threshold. What the exact criteria are for the threshold is still uncertain. Neither the CESCR nor CRC have provided any guidance yet in this respect. Arguably, structural ESC rights violations, which we discussed above, should definitely fall within the category of systematic violations. In sum, the threshold restricts the substantive scope of the procedure but certainly does not exclude any violations that might arise from the extraterritorial conduct of States, as such violations are often systematic.

Considering the existence of an individual communications and an inter-State complaints procedure in the various protocols, the procedure should be regarded as complementary rather than exclusive. Through the procedure the Committees can investigate violations that cannot be addressed by the individual complaints procedure, considering its individual scope.

In Part II we analysed the current international and regional accountability mechanisms and their relevant features from a theoretical and practical perspective. Our aim in Part III is to indicate and examine the most relevant ‘signposts’ for the development of an effective shared accountability framework. We have limited our investigation to the most pertinent legal challenges that arise in the construction of a shared accountability framework. On the one hand we deal with some of the more technical aspects of a complaints procedure, that is the locus standi, ratione materiae and ratione personae requirements, and on the other we explore the more problematic conceptual issue of jurisdiction in chapter 9 on the attribution of obligations.

This study cannot address all the issues that would be likely to arise if States and non-State actors were all subject to direct obligations under human rights law. An analysis of the procedural aspects of accountability mechanisms is a first step in investigating its effectiveness for victims of human rights violations.

The contemporary form of globalization is grounded in a neoliberal orthodoxy marked in particular by the deregulation of the market, the liberalization of trade and the privatization of public sectors. At the ideological level the global market idea has thus prevailed over State control as the dominant paradigm for economic development. This has led to a further diffusion of domestic State power. Non-State actors, principally corporations and international organizations, as well as foreign States, influence decision-making. This reality particularly affects the enjoyment and implementation of ESC rights.

Alongside what has become a fast-moving reality, legal developments in the field of ESC rights are also happening at a fast pace. If we look at the history of ESC rights we find that in recent decades scholarship on ESC rights has increased significantly. Moreover, in the last decade we have not only witnessed the end of the ESC justiciability debate, including a growing recognition of these rights at the domestic level, but also the adoption of an international complaints procedure to deal with violations of ESC rights. Yet, these legal developments fall short of providing accountability in a globalized world.

There is a discrepancy between international human rights law - with its focus on the territorial State - and the current globalized context in which non-state actors and foreign States also affect the enjoyment of ESC rights. We concur with other scholars that the empirical reality increases the risk ‘that a human rights regime that addresses itself effectively only to States will become increasingly marginalized'. It is clear that these challenges cannot be resolved with pure Westphalian solutions. This is not unique to the field of international human rights law. There is an array of challenges (climate change, migration, global health…) which ‘go beyond Westphalian conceptions of society and Westphalian conceptions of international law'. Consequently, the challenge for international (human rights) law is arguably how to integrate or incorporate new realities into the body of international law without disrupting the system too dramatically.

COMPATIBILITY RATIONE MATERIAE & LOCUS STAND I

INTRODUCTION

The locus standi and ratione materiae provisions in a complaints procedure are technical provisions that nonetheless have a great impact on its utility and potential effects. In light of this book we seek to discern how these provisions are best constructed in order to allow individuals to seek accountability for violations committed by States and NSAs. The two admissibility criteria are closely related and we therefore prefer to draw general conclusions after the examination of both issues.

In the next two sections we will explain the choices made by the drafters of the OP-ICESCR as a departure point for our analysis. The relevant provisions in other human rights treaties will be contrasted with the OP-ICESCR's provisions.

COMPATIBILITY RATIONE MATERIAE

In 1995, Tomaševski noticed a sort of paradox when she stated that ‘the subject-matter which regularly attracts most attention in discussions of violations of economic and social rights, namely structural and/or macro policy issues, is mentioned […] the least'. The reason for this, she argued, ‘is the lack of substantive standards, in a form of individual entitlements, that could be invoked in constructing a case for litigating their breach'. She consequently proposed to focus on procedural standards in litigation in order to resolve this. What Tomaševski arguably hints at is that there are obligations that are of a procedural (positive) nature for which breach does not violate a particular human right. In other words, not every violation of a human rights treaty obligation is a human rights violation. Each human rights treaty has an inter-State component which creates obligations erga omnes partes. This book focuses particularly on such inter-State obligations, in particular the obligation to cooperate internationally or the obligation to create an international enabling environment for the realization of human rights. Many of these obligations are certainly relevant in the context of direct obligations for NSAs. For example, IOs greatly influence the creation of an enabling environment that allows the realization of rights.

INTRODUCTION

Before proceeding to examine and analyse Optional Instruments (OIs) of the European Union, it is first necessary to define them. That is, it must be laid out precisely on what grounds the various legislative measures in diverse European policy areas outlined in the preceding introductory chapter can be grouped together under the single heading of ‘EU Optional Instruments’. This is of course essential to understand exactly what we are referring to, and because the very idea of studying these different measures as a distinct kind of EU legislative method rests on the premise that they can all be said to conform to a basic definition, in the sense that they all share certain core elements, which other kinds of EU legislative measures do not. But the question of what defines EU OIs is an important one to address also because it gives rise to a number of other, related questions. Foremost among these is the question of how EU OIs compare to other types of EU legislation, and particularly where EU OIs stand in relation to European ‘approximation’. Furthermore, there is also the question of whether there are actually different types of EU OIs and, in particular, whether a distinction should be drawn between a ‘28th regime’, on the one hand, and a ‘2nd national regime’, on the other. In addition, prior to these, there is even the more abstract issue of what constitutes ‘an optional regime’ in the law, and how EU Optional Instruments relate to this. For these reasons, the present chapter is entirely dedicated to the definition of EU OIs, before we move to describe the specific legislative measures under examination in this study in the next chapter.

Accordingly, this chapter starts with a discussion of optional legal regimes in general, and of the place of EU OIs within this broader context (section A), before zooming in more concretely to the matter of Optional Instruments of the European Union (section B). In this regard, the aim is first and foremost to identify the basic elements that may be said to ‘make up’ a European Union OI, and to consider to what extent existing and proposed ‘EU OIs’ adhere to this definition.

INTRODUCTION

With a view to concluding our discussion of EU Optional Instruments, it is useful at this point to recapitulate the main findings of our inquiry, and to reflect on what importance this could have in years to come. Accordingly, this final chapter is dedicated to summarizing the principal outcomes of the present study, as well as to offering some future perspectives on the matter of EU OIs. We shall start with the former, focusing on outcomes of particular relevance to academics, on the one hand, and to policymakers, on the other (section 1). Then we will proceed to consider the implications of this study both for future research on the subject, as well as for prospective Union OIs (section 2). Finally, the chapter ends with some concluding remarks and observations.

Outcomes of Study

The rise of Optional Instruments of the European Union is a phenomenon that provokes a multitude of profound and far-reaching questions, and the present study offers a response to the most pivotal of them. Of course, there is still much to be said about this important legislative trend happening with the EU, but this study aims to elucidate the main points and evaluate the key arguments and viewpoints on the subject. By way of recollection, three central questions are addressed in this study, from which a discussion of various others has followed. Put simply, they are: What are EU Optional Instruments, what (if anything) makes them desirable, and why are some EU OIs more successful than others?

In answer to the first of these questions, this study has offered a fundamental definition of EU Optional Instruments, and sought to differentiate EU legislation creating OIs from EU approximating measures, which has led to a proposal for a novel distinction between affiliation and similarization. In addition, the idea that EU OIs constitute approximation in the technical sense within the meaning of the EU treaties has also been disputed and, in connection with this, so has the notion of a dichotomy between 28th regimes and 2nd national regimes. Accordingly, the thesis has provided a solid basis for viewing EU OIs as a distinct form of EU legislation, while at the same time rejecting the assertion that there exist different types of EU OIs in this sense.

INTRODUCTION

The possibility of grouping and comparing distinct pieces of EU legislation applicable in diverse fields of law under a single heading on the basis that they are all birds of a particular legislative feather is an appealing one, for it can lead to a whole host of intriguing observations and questions.

First and foremost, the aggregation of various existing and proposed Regulations in the areas of company law, intellectual property law, contract law and procedural law (not to mention others) according to an elemental definition of ‘optional instrument’ supports the finding of a certain trend arising in European Union legislation. That is, it may be observed that the EU legislator is increasingly looking to such ‘optional instruments’ as an alternative way of regulating various areas of (private) law that fall under its competence. In turn, this growing reliance of the EU legislator on OIs begs the question whether this tendency is to be welcomed; or, in more concrete terms, whether this alternative legislative approach is desirable, and for what reasons? Clearly this question can itself give rise to various others, depending on the considerations one might deem relevant in this regard, not to mention the perspective one takes. What are the motivations behind the shift towards OIs in the European Union, and is the reasoning of the European legislator well-founded? More generally, what are the arguments in favour of and against OIs as a method of EU lawmaking? Are OIs a better means of attaining the legislator's goals than other methods available to it and, in particular, is the OI-based approach preferable to that of similarization in achieving the EU's objectives in the different fields of European law? Is the effectiveness of OIs in reaching their stated aims dependent on their being selected by a sufficient number of private individuals on a sufficiently consistent basis? Even though OIs apparently leave national laws unmodified, do/can they still have a converging effect in the relevant field of law at national level? That is, can EU legislation creating OIs still lead to legal convergence in some other way? And if so, to what extent is this (also) dependent on the instrument being chosen by natural and legal persons? What does the optional instrument method mean for the EU Member States and private actors?

INTRODUCTION

Having defined the fundamental nature of Optional Instruments of the European Union, it now becomes necessary to describe the various EU OIs under examination in this study in detail. Before commencing this overview of EU OIs, however, it should be reiterated that the present study does not cover (nor does it seek to cover) every single EU OI that has been adopted or proposed by the European legislator to date. Instead, our focus will rather be on three areas of European law in which a series of EU OIs have been adopted/proposed – namely European company law, European intellectual property law and European procedural law –, as well as on a proposal for an optional instrument in the area of European contract law that has since been withdrawn. As we shall see, all of these EU OIs have been around (in one form or another) for some years already, and many of them possess particularly interesting characteristics.

Thus, with this being said, in what follows an overview of each of these EU OIs (twelve in total) will be provided, charting their development since the European legislator enacted the very first optional instrument of the Community in the field of company law in 1985. This overview will systematically address a range of points, including the nature of, background to and legal base for the optional instrument; the aims and objectives behind the optional instrument; the legal and institutional framework, substantive content and scope of the optional instrument; and the advantages of the optional instrument, as well as (where appropriate) relevant statistics on its application. The chapter will then conclude with a brief comparison of these EU OIs, making reference to different aspects highlighted in the overview.

EU OIs in the Area of European Company Law

The European Economic Interest Grouping (EEIG)

As was already mentioned, the very first Optional Instrument (OI) to be formally adopted at EU-level was the European Economic Interest Grouping (EEIG), enacted by means of a Regulation on 25 July 1985. Pertaining to the field of European Company law, this legislation created a new Community-wide form of corporate legal entity, to be added to the list of existing national company forms available to private actors in each of the Member States.