Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

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European Security Right, or a European concept of ownership. When enacting legislation, the EU legislature would have to adhere to the concepts thus developed or state reasons for deviating from them. This could increase consistency and coherence in future EU property legislation, which is currently lacking.124 At the moment, there is no formal obligation for the EU legislature to use and define concepts that are repeatedly used in legislative instruments consistently. In the consumer acquis, this has, for instance, led to confusion about the term consumer,125 but also about withdrawal rights and cooling-off periods, which differ from one legislative instrument to the other.126 The very limited amount of EU legislation in the area of property law provides an opportunity to try and achieve a level of coherence and consistency up front, instead of having to rectify discrepancies in definitions and use of terms ex post.

5.2.Legal Basis

With Option 1 – publication of the results of the Expert Group – the Commission would be fulfilling its obligations under Articles 2 and 12 of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents.127

Option 2 – the creation of a ‘toolbox’ – could be achieved through a communication, decision or inter-institutional agreement. Communications do not require a legal basis;128 inter-institutional agreements may be concluded under Article 295 TFEU. A decision is one of the three binding legislative instruments the Union can adopt under Articles 288(1) and 289(3) TFEU. Such a decision, taken by the Commission, would require a legal basis. The Max Planck Research Paper commenting on the 2010 Green Paper does not discuss the issue of a legal basis for a decision on a toolbox, because it views a decision as an ‘ill-suited’ form for a toolbox.129 Admittedly, it is not easy to find a legal basis for a decision on a toolbox addressed to the institutions themselves, with the exception, perhaps, of Article 290(1) TFEU, which states that ‘[a] legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.’ Article 114 – the legal basis for measures pertaining to the establishment and functioning of the internal market – cannot be used as a legal basis, even though it provides for the adoption of ‘measures’, which could include a decision, because a decision on a toolbox would not lead to the approximation of the laws of the Member States.130 Article 352 – the

124See Chapter 4.

125Green Paper on the review of the consumer acquis, COM(2006) 744 final, at Annex I, 4.1.

126Ibidem, at Annex I, 4.8.

127[2001] OJ L 145/43. Art. 2(1): ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions’; Art. 12(1): ‘The institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned.’ See also Basedow et al. 2011, p. 7.

128Basedow et al. 2011, p. 7.

129Basedow et al. 2011, p. 7.

130See infra, section 6.1. Legal basis.

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legal basis of last resort if the Treaty provides no other legal basis – which also provides for the adoption of ‘measures’, could only be used as a legal basis for a decision on a toolbox, if such action were necessary to attain one of the objectives set out in the Treaties. Both Articles 81 – the legal basis for EU private international law

– and 169 TFEU – the legal basis for consumer protection – also provide for the adoption of ‘measures’. However, Article 81 again requires approximation of the laws of the Member States, which a toolbox would not do, whereas Article 169 refers back to ‘measures adopted pursuant to Article 114’, which would also again require approximation of national laws.

Option 3 – a recommendation – could be based on Articles 17(1) TEU and 292 TFEU, regardless of whether it would be meant to replace national laws or create an optional instrument.131 These provisions provide the Commission with the power to issue recommendations on areas covered by the Treaties where it deems it necessary to do so.132

6.Optional Instrument

A noteworthy difference between an optional instrument and a mandatory instrument is that an optional instrument – contrary to a mandatory instrument – does not replace the national systems but exists next to it, as a so-called 28th system.133 Schulte-Nölke feels that, in this way, the ‘national laboratories of legal development’134 continue to be a source for comparative research and to provide examples of how different legal systems solve a particular problem. It would no longer be possible to draw inspiration from the different national legal systems if they were all replaced by one harmonized European system. Furthermore, according to Weatherill, ‘[a] harmonized private law will not display the susceptibility to local preference that is the preserve of a more decentralized system’.135 Whether this is true can be debated. European rules which aim to harmonize will still be woven into the national system somehow and will not be applied uniformly throughout the EU. Local preferences could still be visible through the way in which the harmonized rules are incorporated into the national system. However, the use of an optional instrument instead of harmonized rules could show, through choices made by consumers and businesses for either the optional instrument or their own national law, whether the local preference is for the national rule or for the European rule.136 This could form an indication about the attractiveness and quality of the

131Basedow et al. 2011, p. 8.

132Craig & De Búrca 2008, p. 86.

133In an EU with 27 Member States. Technically, for property law it could even be a 29th system or more, given that within some Member States more than one system applies (e.g. within the UK, Scotland has its own system of property law, separate from England and Wales, and Northern Ireland); see Smits 2009b, p. 1731. See also Kieninger 2002, p. 369-371; in the context of property law, several projects on optional property law have been started in the past, for a European Security Right on movables and for a European hypothec or mortgage, but they have not been successful so far.

134Schulte-Nölke 2010, p. 140.

135Weatherill 2004b, p. 647.

136Smits 2006b, at no. 27.

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European rule for the end-users (which could be multi-nationals, SMEs or consumers, depending on the content of the instrument), an indication which you could not get when implementing harmonized rules.137 Furthermore, providing the possibility to opt for this 28th system as an alternative to a national system means that courts would only have to apply either their own domestic law or the European optional law.138 This may be an advantage over a country of origin principle in combination with mutual recognition, which would confront the courts with 26 foreign systems of law, rather than just one European law.139 In the Commission’s view, an optional instrument could facilitate the functioning of the internal market for two main reasons: such a non-national regime would be specifically adapted to cross-border transactions and it may be ‘an acceptable and adequate solution’140 for both the economically stronger and weaker parties.

Having a 28th system only works if private individuals can choose this option as the applicable law to their legal relationship. However, traditionally, choice of law is not an option in property law. It may therefore be pointless to devise an optional instrument directed at private parties if they cannot choose it. Instead, the instrument would have to be directed at the Member States, who would be obliged to make the optional regime available next to their own national law, thereby providing a choice of law for private parties.141 Member States could also choose to incorporate the rules from the optional model into their own national system, thereby avoiding the issue of whether or not to grant choice of law in property law to private parties. The question for the Member States then becomes whether it would put less of a burden on their national system to have to allow individuals to choose between the national and the European regime or to adapt the national system to the European regime. If the European regime will be applicable to crossborder situations only, then it can simply exist as an available option next to the Member States’ own national systems. If on the other hand the European regime becomes applicable also to purely internal situations, then the competition with and the pressure on the national system may increase. This in turn may lead a national legislature to decide to adapt the national system to the European system, instead of maintaining both regimes next to each other.

The Proposal for a Common European Sales Law, which was adopted as a result of the Commission’s 2010 Green Paper, proposes a Regulation that will add a second national regime next to the already existing national regimes, thereby implementing the CESL at the national level as opposed to the European level.142

137Such an indication would be the result of regulatory competition between the European rule and the national rule; see infra, section 6.4.

138Schulte-Nölke describes this as the ‘blue button’ option: Schulte-Nölke 2010, p. 142 and Schulte-Nölke 2007, p. 348-349.

139See supra section 3. EU Private International Law.

140Communication from the Commission to the European Parliament and the Council – A more coherent European contract law – An action plan, COM(2003) 68 final, OJ C 63/1, at 90. See also Hesselink, Rutgers & Booys 2007, p. 14.

141Cf 2010 Green Paper, p. 9: ‘A Regulation could set up an optional instrument, which would be conceived as a “2nd regime” in each Member State, thus providing parties with an option between two regimes of domestic contract law.’

142Proposal for a Regulation on a Common European Sales Law, COM(2011) 635 final, p. 8-9.

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This would mean that, once the rules of private international law have indicated the applicable national law to a contract, within the applicable national law parties can choose between the national law that is of national origin and between the national law that is of European origin. The reason for introducing the CESL in this way seems to have been to meet the ‘approximation’ requirement of Article 114, which has been chosen as the legal basis for the CESL.143 We will have to wait and see whether this manner of introducing optional European private law will be accepted by the Parliament and Council during the legislative procedure and how it will work in practice if the Regulation containing the CESL is indeed introduced this way.

6.1.Legal Basis

Should the Commission decide in the future to enact rules of property law by way of an optional instrument, then the legal basis must be chosen carefully.144 Several authors point out that Article 114 TFEU (ex Art. 95 EC) would probably not be the correct legal basis, given that an optional instrument does not lead to ‘approximation’, as is required by Article 114.145 An optional instrument containing new rules or European concepts would exist next to the national systems, without changing them. Such instruments, according to the ECJ, are not ‘measures for the approximation’.146 Article 352 TFEU (ex Art. 308 EC) would offer an alternative legal basis but requires unanimity in the Council, which may be very difficult to achieve. Moreover, involvement of the European Parliament is limited under Article 352; its consent needs to be obtained but it is not part of the legislative procedure as it normally is under the codecision procedure. Given that the EP has specifically indicated that it feels that codecision is required when legislation is drafted in the

143See Chapter 6, Part II at 3.1. Legal basis revisited.

144Unfortunately, the Commission does not address the matter of legal basis in its 2010 Green Paper: Basedow et al. 2011, p. 16. With regard to EU property law, the Commission does address legal basis (although more the principles of subsidiarity and proportionality than legal basis itself) in its Proposal for a Directive on credit agreements relating to residential property, COM(2011) 142 final, p. 7.

145See inter alia Basedow et al. 2011, p. 19; Weatherill 2010b, p. 67; Hesselink, Rutgers & Booys 2007, p. 47-50.

146Case C-436/03, European Parliament v Council [2006] ECR I-3733, paras. 43-46: ‘Finally, it is apparent [...] that the European cooperative society is a form which coexists with cooperative societies under national law. In those circumstances, the contested regulation, which leaves unchanged the different national laws already in existence, cannot be regarded as aiming to approximate the laws of the Member States applicable to cooperative societies, but has as its purpose the creation of a new form of cooperative society in addition to the national forms. That finding is not affected by the fact that the contested regulation does not lay down exhaustively all of the rules applicable to European cooperative societies and that, for certain matters, it refers to the law of the Member State in the territory of which the European cooperative society has its registered office, since, as pointed out above, that referral is of a subsidiary nature. It follows from the above that Article 95 EC could not constitute an appropriate legal basis for the adoption of the contested regulation, which was correctly adopted on the basis of Article 308 EC.’

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area of civil law,147 it may object to the use of Article 352 as a legal basis for an optional instrument in property law.

Article 169(2) TFEU is not likely to be a suitable legal basis. An instrument based on this provision would be restricted to consumer law, thereby excluding B2Band C2C transactions and the protection of SMEs.148 In the area of property law, many of the barriers to intra-Union trade are experienced by companies who lose their security rights when transporting goods across Member States’ borders.149 It would therefore not make sense to create an instrument of EU property law that does not apply to B2B-transactions.

Article 81 TFEU may serve as a legal basis, although it is debated whether it can be used for measures containing substantive private law or whether it can only be used for measures containing private international law rules.150 Notwithstanding the outcome of that debate, Article 81 can in any event only be used for instruments that apply to cross-border situations, not for instruments that also apply in purely internal situations. Given that I would be in favour of an instrument of EU property law that can also be used in purely internal situations,151 I would not propose to base such an instrument on Article 81 TFEU.

In conclusion, even though there are some procedural hurdles attached to the use of Article 352 TFEU, it nevertheless seems to be the most suitable legal basis for an instrument on EU property law.152

6.2.Regulation or Directive

Regulation 593/2008/EC on the law applicable to contractual obligations (Rome I) only allows parties to choose the law of a State as the applicable law to their legal relationship.153 The proposal for this Regulation envisaged a provision making it possible for parties to choose a non-State body of law – including a future optional

147European Parliament resolution on the approximation of the civil and commercial law of the Member States, [2002] OJ C 140E/538, at 21: ‘Insists that the codecision procedure involving the full participation of the European Parliament must in principle be used when adopting legislation in the field of civil law’.

148Basedow et al. 2011, p. 25.

149This is a result of the private international law rule of lex rei sitae, which makes it impossible for parties to choose the law applicable to their proprietary relationship, and of the closed system of property rights (numerus clausus), which will not accept the ‘import’ of a foreign property right into the national list of property rights. The EU Member States generally adhere to both these rules.

150Basedow et al. 2011, p. 17.

151See supra at section 4. Cross-border or purely internal situations.

152Basedow et al. even state that ‘[f]or such an instrument [an optional instrument which covers both domestic and cross-border transactions], it is also the only possible legal basis’; Basedow et al. 2011, p. 27.

153This is not explicitly stated in the Regulation, but can be deduced from the wording of Art. 3(3): ‘the country whose law has been chosen’. See also Smits 2011, p. 25.

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instrument154 – but this provision has not become part of the final version. However, this possibility is still mentioned in the Preamble to the Rome I Regulation:

‘(13) This Regulation does not preclude parties from incorporating by reference into their contract a non-State body of law or an international convention.

(14) Should the Community adopt, in an appropriate legal instrument, rules of substantive contract law, including standard terms and conditions, such instrument may provide that the parties may choose to apply those rules.’

As a result, a future European optional instrument – even though it would not constitute a State’s law – may provide that parties can choose it as the applicable law to their legal relationship, in deviation from the Rome I Regulation.155 I would agree with Lagarde that one can only deviate from a regulation with another regulation, not with a directive.156 Therefore, a future optional instrument should be laid down in a regulation, not a directive. This is indeed the case with the proposed Common European Sales Law,157 although this proposal works around Recital 14 of the Rome I Regulation by introducing the Common European Sales Law as a second national law, rather than a European law.

Is it a problem for property law that the Preamble to Rome I only envisages the adoption of ‘rules of substantive contract law’ in an optional European instrument? The answer to that question would seem to depend on whether this phrase is interpreted narrowly or widely. Rome I does not treat rights in rem separately, as it does trusts.158 It recognizes that a contract will be the origin of the creation or transfer of a right in rem: it always uses the phrase ‘contract relating to a right in rem’.159 Currently, it refers contracts relating to a right in rem to the lex rei sitae, in other words it does not provide for a choice of applicable law to a contract relating to a right in rem.160 The Proposal for a Common European Sales Law states in Recital 27 that

‘[a]ll the matters of a contractual or non-contractual nature that are not addressed in the Common European Sales Law are governed by the pre-existing rules of the nation-

154‘To further boost the impact of the parties’ will, a key principle of the Convention, paragraph 2 authorizes the parties to choose as the applicable law a non-State body of law. The form of words used would authorize the choice of […] a possible future optional Community instrument’; Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I), COM(2005) 650 final, Art. 3. See also Lagarde 2009, p. 282-3.

155Synthesis of the Fifth Meeting of the Expert Group on a Common Frame of Reference in European Contract Law, Brussels, 5 October 2010, p. 1; to be found at: <http://ec.europa.eu/ justice/policies/consumer/docs/cfr_report_10_10_01_09_30_en.pdf>.

156Lagarde 2009, p. 284: ‘Il ne peut s’agir à mon sens que d’un instrument ayant la même force que le règlement Rome I. Ce que le règlement Rome I a fait, un autre règlement peut évidemment le défaire.’

157COM(2011) 635 final, p. 6.

158Art. 1(2)(h) of Rome I.

159See e.g. Art. 4(1)(c).

160To clarify: the law applicable to the contract as such can still be chosen under Art. 3 of the Rome I Regulation, but parties cannot choose the law applicable to the creation or transfer of a property right envisaged by the contract.

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al law outside the Common European Sales Law that is applicable under Regulations (EC) No 593/2008 [Rome I] and (EC) No 864/2007 [Rome II] or any other relevant conflict of law rule. These issues include […] property law including the transfer of ownership.’161

The wording of this Recital suggests only that certain contractual and non-contrac- tual issues – such as property law – have not been addressed by the proposed CESL, but that does not necessarily mean that they could not have been addressed or be addressed, in another optional instrument.

6.3.Opt-In or Opt-Out

An optional instrument can provide for the possibility to opt-in or to opt-out of it. In the first instance, the instrument is only applicable if specifically elected. In the second instance, the instrument is applicable by default unless opted out of. The question, whether an optional instrument should contain an opt-in or an opt-out regime, can be asked at three different levels. One could ask, whether the Member States should be given the opportunity to opt into or out of an optional instrument, in the sense that they can decide whether or not to make the European regime available next to their national regime. This can happen in two ways. First, the United Kingdom and Denmark have opted out of the application of certain provisions of the TEU and TFEU through Protocols Nos. 15 and 16, which are attached to those treaties. One could call this Treaty-based opt-out. Second, an optional regime laid down in a regulation or directive based on a Treaty provision not excluded in Protocol No. 15 or 16 could provide the Member States with the choice whether or not to implement this optional regime. At this level, I would be in favour of an opt-out regime, otherwise – with an opt-in regime – the risk may be too great that too few Member States make the European option available for it to actually be useful for parties.162 An optional instrument with an opt-in regime for the Member States would practically amount to the same as Option 3(b) of the 2010 Green Paper – A Commission Recommendation for an optional regime – with regard to which the same objection was made.163

One could also ask whether private parties should be given the opportunity to opt into or out of an optional instrument. At this level, there is a pre-supposition that the European regime is available next to the national regimes. In this scenario, there is no longer a choice for the Member States whether or not to make the option available, but there is now a choice for parties whether or not to make use of the European option. At this level, I would be in favour of an opt-in regime. An opt-out regime can become de facto binding,164 given that it will be the default regime unless explicitly rejected by the parties. An optional instrument containing an opt-out regime will therefore come much closer to a mandatory instrument, whereas an optional instrument containing an opt-in regime will be more ‘truly’ optional,

161Recital 27 in the Preamble.

162An optional instrument with an opt-in regime resembles the process of enhanced cooperation; enhanced cooperation will be discussed below, at section 8.1.

163See supra, at section 5. Non-binding options.

164Hesselink, Rutgers & Booys 2007, p. 17.

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leaving the choice with the parties rather than making it for them. I would agree with Smits that the legitimacy of an optional instrument lies primarily in the choice that parties make for it.165 An opt-in regime provides parties with that possibility to choose.

6.4.Optional Instrument and Regulatory Competition

Much has been written about regulatory competition in the context of harmonization of private law in the EU,166 the idea being that an optional instrument could compete with the national systems and that parties would choose the rules which best suit their wishes. In this way, the European rules could prove their quality. It must be noted, however, that many of these writings concern harmonization of contract law, not property law. Regulatory competition can only take place if parties can choose between different regimes. Choice of law is common in contract law. It would thus not be problematic to introduce another – European – option into the range of options already available to the contracting parties.167 By contrast, choice of law is not normally accepted in property law.168 The national systems of property law lay down mandatory rules that cannot be deviated from.169 This is inherent to this area of law and is only logical given the erga omnes effect that distinguishes property rights from contractual rights.170 Given that the applicable property law will always be the lex rei sitae, the only way in which parties could choose the applicable law, when creating or transferring a property right, is to make sure that the object in relation to which they want to create or transfer the right has first been brought to the country whose law they wish to be applicable.171 Obviously, this is only possible for movable objects, not for immovables. And even then, this only works as long as the object stays within that country. As soon as the object is moved across a border, the situs changes and, with that, the applicable law also changes.172 Regulatory competition between an optional set of European rules of property law and each of the Member States’ systems of property law is therefore only possible if the Member States are obliged to offer their citizens the European option next to their national law.173 It must be kept in mind that this would still only lead to a competition of two legal systems, namely between a Member State’s national

165See Smits 2011, p. 31-32 and Smits 2006b at 29: ‘[I]n geval van een optionele code ligt de legitimering primair in de keuze die door partijen daarvoor wordt gedaan.’

166See, inter alia, Smits 2009a, p. 35 with reference to Charles Tiebout who developed the theory of ‘jurisdictional competition’; Michaels & Jansen 2006, p. 863-864; Weatherill 2004b, p. 653 et seq.; Wagner 2002, p. 1002; Kieninger 2002.

167Although Kenny sees this as a risk: introducing a 28th system of contract law as yet another choice in cross-border trade could lead to even more legal fragmentation than is currently already the case; Kenny 2006, p. 781. This risk is less prevalent for a European system of property law, as it would technically not constitute a 28th system but only a 2nd system next to each of the Member States’ systems.

168Van Erp 2011a, p. 1.

169Cf Smits 2009a, p. 36; Kieninger 2002, p. 83.

170Van Erp 2006a, p. 1051-1053.

171Cf Kieninger 2002, p. 83.

172See, inter alia, Strikwerda 2008, p. 151; Van der Weide 2006, p. 34; Kieninger 2004b, p. 17.

173Cf Basedow et al. 2011, p. 43.

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property law and the European property law, as opposed to the competition of 28 (or more) legal systems that could take place if a European contract law were introduced next to the 27 existing Member States’ contract laws.

6.5.Preliminary Conclusions – an Optional Instrument for EU Property Law?

In this section I have focussed on one of the policy options formulated by the Commission in its 2010 Green Paper, namely that of a Regulation setting up an optional instrument (Option 4). While the Commission’s Green Paper is concerned with European contract law, I have used it as a starting point to draw a parallel with the option of an optional instrument for EU property law.

A preliminary matter is that of legal basis. What would be the legal basis for an optional instrument? Article 114 TFEU might be used, but the objection could be raised that an optional instrument does not actually lead to ‘approximation’ of national laws, as is required by Article 114. In accordance with the CJEU’s case law, an instrument containing new rules or European-autonomous concepts – which an optional instrument does – should rather be adopted on the basis of Article 352 TFEU. While this may formally be a more appropriate legal basis, it raises several practical problems: unanimity is required, which may be difficult to reach with 27 Member States; and the Parliament’s involvement would be limited, to which the Parliament may object.

An optional instrument is only useful if parties can actually choose it as the applicable law to their legal relationship. However, whereas choice of law is common in contract law, it is not generally accepted in property law. Therefore, if an optional instrument containing rules of EU property law were to be drafted, Member States should be obliged to make it available next to their national system so that parties can choose between the two regimes. Both the 2010 Green Paper and the Max Planck Institute (MPI)’s comments on the Green Paper indicate that the optional instrument is not meant to be optional for the Member States but optional for the contracting parties. This follows from the Green Paper’s proposal to implement such an optional instrument by way of a regulation; it also follows from the MPI’s comment that ‘option [3(b): Recommendation of an optional regime] is fundamentally different from option 4 [Optional instrument] in that the “optional regime” of option 3(b) would not be available in all Member States’.174

I would be in favour of an opt-in instrument which parties can choose for both purely internal situations and cross-border situations. This approach makes regulatory competition possible between, on the one hand, the Member States’ national systems and, on the other hand, the European regime. The fact that parties choose the European regime would legitimize the optional instrument and provide an indication of its quality and attractiveness.175 It could verify or falsify the hypothesis that differences in national law (actually or potentially) hinder intra-

174Recommendations are not binding for Member States and they can therefore choose whether or not to implement them.

175Cf Keirse & Veder 2010, p. 89.

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Community trade,176 a hypothesis which may otherwise be difficult to test empirically.177 Time would have to tell whether or not the optional instrument would be a success. Finally, an optional instrument would mean less interference with and fragmentation of the national system of property law than harmonization.178 This may make the instrument more attainable than harmonization would be.179

7.Binding Instrument

Policy options 5, 6 and 7 in the 2010 Green Paper all propose a binding instrument, although with differing scopes of application: Option 5 – a Directive on European Contract Law on the basis of minimum common standards; Option 6 – a Regulation establishing a European Contract Law; and Option 7 – a Regulation establishing a European Civil Code.

Harmonization or unification through a binding, mandatory instrument has advantages and disadvantages. An important advantage over an optional instrument would be that it would be meant to apply in the same way in all the Member States. This would not necessarily be the case with an optional instrument, in which case the discrepancies between the Member States might remain, depending on how the optional instrument would be implemented. As described above,180 it is possible to create an optional instrument which provides the Member States a choice whether to opt into or out of the instrument. If the Member States are not obliged to make the optional instrument available for parties to choose as the applicable law to their legal relationship, then a situation may arise whereby some Member States do participate in the optional instrument but others do not. In that case, the former discrepancies between the national laws of the Member States would be replaced by new discrepancies, this time between the participating and non-participating Member States. These discrepancies showed a need for harmonization in the first place. Therefore, a binding instrument in the form of a regulation may also be preferable over a directive, given the direct applicability of regulations without any need for implementing measures.181 This will be explored below.182

7.1.Legal Basis

As mentioned before under the heading of a legal basis for an optional instrument,183 Article 114 TFEU requires approximation of national laws if it is to be used as a legal basis. While this requirement rendered Article 114 an unlikely legal basis for an optional instrument, it will probably not be an obstacle in relation to options

176Keirse & Veder 2010, p. 56.

177Cf Heiderhoff 2007, p. 11.

178Cf Snijders 2006, p. 160; Bouckaert 2006, p. 191.

179Keirse & Veder 2010, p. 56.

180Section 6.3.

181Art. 288 (ex Art. 249 EC). Cf Schulze 2009, p. 67; Müller-Graff 2004, p. 87.

182Section 7.2. Regulation or Directive.

183Section 6.1.

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