Chapter 2 - Nature and Type(s) of Eu Optional Instruments

Summary

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 ‘28^th regime’, on the one hand, and a ‘2^nd 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.