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(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1325-1356 | Article | (Table of Contents) I. Introduction. - II. CSDP: Between a common and differentiated policy. - II.1. CSDP as a common policy of the EU. - II.2. Differentiated integration in CFSDP. - III. PESCO's microcosm of differentiated integration. - III.1. The awakening of the "Sleeping Beauty". - III.2. Participation in PESCO. - III.3. PESCO projects. - IV. PESCO: Contributing to a common security and defence policy? - IV.1. General principles in EU CFSP and their enforcement. - IV.2. Consistency in relation to differentiated integration in PESCO. - IV.3. Sincere cooperation in relation to differentiated integration in PESCO. - V. Conclusion- | (Abstract) The use of Permanent Structured Cooperation (PESCO) by the European Union to manage defence cooperation between its Member States is the most recent example of Differentiated Integration (DI) in the EU. Yet differentiation may come at a price. The main aim of the present Article is to assess to what extent defence cooperation under the umbrella of PESCO can be cut up in pieces and yet still be considered a common defence adhering to the EU's general principles of consistency and sincere cooperation. The question, therefore, is whether DI in PESCO is limited by these principles, and consequently, whether the CSDP, despite the differentiation, still contributes to a common policy. In short, the question is whether there is a tension between commonness and differentiation in EU security cooperation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1191-1209 | Article | (Table of Contents) I. Introduction. - II. Potential for legislative differentiation: Space offered by the EU legislature. - II.1. Comparing the GDPR and the SAD. - II.2. Legislative contexts. - II.3. Zooming in: Identifying discretion. - III. Using the potential: Member States' implementation. - IV. Alternative to differentiated integration? - IV.1. Real decision-making authority or decisions on details? - IV.2. Political decision-making or fitting the directive into pre-existing structures? - V. Conclusions. | (Abstract) The "uniformity-based"-model of EU integration has lost considerable ground. It has become more and more considered as a model which takes too little account of national differences in economic, social, cultural and constitutional conditions and in political views. Differentiated integration (DI) raises issues, however. Equality of the Member States and the effectiveness of EU law and policy may be seriously impaired. This Article explores the potential of legislative differentiation as an alternative to more classic forms of DI. With legislative differentiation, we refer to the situation in which Member States are allowed to make substantive policy choices in the implementation of EU legislation and use such flexibility to customize EU legislation to their own domestic contexts. We explore this potential by assessing two case studies: the General Data Protection Regulation and the Child Sexual Abuse Directive. The analysis of these case studies shows that legislative differentiation is a multifaceted phenomenon that indeed has the potential to be an alternative to the classic forms of DI. Yet, in practice sub-optimal results have been found as well. Therefore, more consideration and a better incorporation of diversity in legislative processes is required to further enhance the potential of differentiated legislation.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1165-1190 | Article | (Table of Contents) I. Introduction. - II. Sources of rigidity. - II.1. Omnidirectional reciprocity as a source of rigidity. - II.2. Interconnectedness as a source of rigidity. - II.3. Effectiveness as a source of rigidity. - II.4. The clash between rigidity and the dynamics of differentiation. - III. Brexit insights for future attempts at structural differentiation. - III.1. The transition period as sheer rigidity. - III.2. The Northern-Ireland Protocol: Flexible borders and rigid law. - III.3. The TCA as the residual space of rigidity. - IV. Conclusion: Rigidity roadblocks to future structural integration. | (Abstract) This Article argues that the legal space for truly structural forms of differentiation in the EU is limited by several sources of rigidity. Sources of rigidity are thereby understood as legal rules and principles that, either by themselves or in interaction with other rules, principles and material facts, limit the scope for structurally significant differentiation in the EU's legal and constitutional set-up. A source of rigidity can therefore be broader than a single legal rule or principle because the rigidity may stem from a combination of or interaction between multiple principles, rules and facts. Using Brexit as a prism, this Article identifies at least three such sources of legal rigidity, being reciprocity, interconnectedness and effectiveness. These sources of rigidity also place significant limits on the possible dynamics of differentiation. It is demonstrated how Brexit brought these sources of rigidity to the surface, and how legal rigidity can and likely will collide with an increasing political desire for more structural differentiation in the future.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1243-1263 | Article | (Table of Contents) I. Introduction. - II. The evolution of differentiated integration in the field of asylum. - III. Flexible solidarity in the New Pact on Migration and Asylum. - III.1. The Proposal for a Regulation on Asylum and Migration Management: A fresh start? - III.2. The management of flexible solidarity. - III.3. Return sponsorship: A concept that did not please anyone. - IV. Solidarity in cooperating with third countries in the New Pact on Migration and Asylum. - V. The gradual approach: Towards a voluntary solidarity mechanism. - VI. Conclusion. | (Abstract) Flexible solidarity is presented by the Commission in the New Pact on Migration and Asylum as a solution to break the deadlock in the reform of the EU asylum policy. The aim of this Article is to analyse to what extent the development of flexible solidarity in the field of asylum will allow the EU to address the shortcomings that the CEAS is facing today. The key question is whether differentiation as regards solidarity serves to further develop the EU asylum policy by introducing a useful degree of flexibility to accommodate the different interests of the Member States or the multiplication of forms of solidarity will lead in the long run to more disintegration. It will also be assessed to what extent the gradual approach followed by the French Presidency of the Council in the first semester of 2022 will allow to make concrete progress on the New Pact on Migration and Asylum and achieve the ambition of a comprehensive asylum and migration policy at EU level in the future.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1141-1144 | Article | (Abstract) This Article provides insights into the question of whether there is a tension between commonness and differentiation in EU policies, in particular post-Brexit. Brexit triggered new discussions on so-called differentiated integration (DI) in the European Union. Not only was Brexit perceived as a potential tool to take further integrative steps in certain policy areas, it also pointed to the idea that there is a risk in trying to force each and every Member State to follow the same pace. Hence, while part of the scholarship sees Brexit as a tragedy for the European integration process, others have pointed to possible advantages that would allow for further integration in certain areas. In any case, the present Special Section underlines that Brexit seems to have renewed the debate on the ways in which the EU Member States could proceed, together or in smaller groups. It takes stock of the DI possibilities in different concrete policy areas and highlights options and obstacles.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1303-1324 | Article | (Table of Contents) I. Introduction. - II. PESCO and differentiated integration in European Defence. - II.1. Approaching the definition of differentiated integration. - II.2. Pre-PESCO landscape. - II.3. Differentiated integration via PESCO. - III. The participation of third States. - IV. Strategic Review 2020. - V. Conclusions. | (Abstract) After decades of bi-national and multinational military programmes that arrived in dribs and drabs, and once the United Kingdom decided to withdraw from the EU, the launch and implementation of the Permanent Structured Cooperation (PESCO) in 2017 has emerged as a real game-changer. Thus, favouring differentiated integration in defence matters within the European Union after Brexit. This Article focuses on the analysis of both horizontal and vertical differentiated integration from an eminently practical point of view. All of this, aimed at illustrating the distinction between the pre-PESCO scenario and the current one with 60 projects underway within its framework. In this sense, the analysis makes it possible to distinguish a real group of frontrunners in the implementation of PESCO and the window of opportunity that opens up by allowing third states to participate in individual projects, with particular attention to the case of the United Kingdom.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1211-1227 | Article | (Table of Contents) I. Introduction. - II. Conceptual confusion. - III. Learning the lessons on differentiated integration. - III.1. The advent of Brexit. - III.2. The challenge for the future. - IV. Conclusion. | (Abstract) Historically, the use of differentiated integration mechanisms has been based on the idea of the widening and deepening of the European Union, necessitated by the enlargement of the bloc through the addition of Member State countries. The advent of Brexit means that we are in a rather different situation today, where the monodirectional march towards deeper, uniform integration between an ever increasing number of States is neither inevitable nor assured. The differences between all of the then 28 individual Member States in the pre-Brexit Union were multifarious. These differences have not disappeared along with the UK upon its exit from the Union. They still exist between the remain-ing 27 Member States and will likely increase in prominence as the European Union pursues its future path. Addressing those differences will require an alternative approach to uniform integration from the EU, it will require differentiated integration. This Article suggests that there are lessons to be learnt on differentiated integration from applying Brexit as a framework. The confusion surrounding differentiated integration as a concept, and the prominent role of the UK in availing itself of opportunities to utilise differentiated integration mechanisms, has led differentiated integration to be attributed to the UK as a form of British exceptionalism. Brexit is not just an opt-out but the ultimate opt-out, a form of flexibility sought from outside the European Union, consequent on a lack of wider acceptance of differentiated integration in terms of both legal permissiveness and extent as well as attitude within the Union. The maintenance of differences between the remaining Member States means that there needs to be increased open acceptance of the likely need for greater differentiated integration in the future.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(3), 1287-1302 | Article | (Table of Contents) I. Introduction. - II. Post-Brexit security and defence cooperation as differentiated disintegration - III. Theresa May and the proposed "security partnership". - IV. The trade and cooperation agreement and beyond. - V. The war in Ukraine: A game changer? - VI. Conclusion. | (Abstract) Research on differentiated integration has flourished in recent years, highlighting the political and efficiency gains to be had from selective participation and third country engagement in EU policy areas. Proposals for an EU-UK security and defence agreement represented a paradigmatic example of differentiated disintegration, for which both strategic and political prospects initially appeared positive, yet which ultimately foundered on the back of the EU's reluctance to create new third country models and subsequent political upheaval in the UK. This Article asks why these proposals failed and what this can tell us about the politics of differentiated (dis)integration, focusing on the referendum to the recent Ukraine crisis, and drawing on several elite interviews conducted with policymakers in London and Brussels. It shows that while the strategic benefits of differentiation increased following the Brexit vote, the growing concern in Brussels for the precedent set by Brexit, the collapse of issue-specific dynamics into a singular concern for UK "cherry picking", and the rightward shift in UK politics occasioned by the Brexit negotiations all undermined the prospects for a differentiated outcome in security and defence. The Ukraine crisis, while precipitating significant changes in many European states, had thus far failed to alter the new status quo locked in after Brexit.

(Series Information) European Papers - A Journal on Law and Integration, 2022 7(2), 909-928 | Article | (Table of Contents) I. Introduction. - I.1. From initial rejection to acceptance of differentiated integration as an institutional feature of the EU migration policy. - I.2. The "migration crisis" and the "fractured values" of the EU migration policy: differentiated integration as an indicator or a catalyst? - II. Differentiation as a governance tool: the intergovernmental roots of the EU migration policy. - II.1. Defining EU migration policy. - II.2. The evolution of the EU migration policy: from a purely intergovernmental to a quasi-fully integrated policy. - II.3. The institutional challenges of differentiation for EU migration policy: defining the territorial scope of EU migration law. - III. Intersecting the migration' and rule of law "crises": Unveiling a deeper layer of differentiated integration? - III.1. From the institutional to the normative dimension of differentiation in the EU migration policy. - III.2. Worlds apart? The dis-connection between the rule of law and migration "crises" in the case law of the CJEU. - IV. Final remarks. | (Abstract) As with the whole Area of Freedom, Security and Justice (AFSJ), EU migration policy is one area of EU policy-making in which differentiated integration has found its clearest expression. Owing to its intergovernmental roots, differentiated governance has been considered the necessary compromise for a deeper integration in this policy field since the Amsterdam Treaty entered into force. The adoption of flexible mechanisms aimed to accommodate the political interests of some Member States. While many of the technical intricacies related to this special institutional set-up have now disappeared in the aftermath of Brexit, looking at the possible intersections between the recent migration and rule of law "crises" has brought to the fore a more serious form of disagreement between the Member States on the deeper values - or the possible absence thereof - with respect to EU migration policy. This has become especially clear in the way in which the Court of Justice of the EU (CJEU) seems to have adopted a disconnected approach in its case law relating, respectively, to the "rule of law crisis" and the "migration crisis" so far. This Article argues that beyond the fragmented scope of the EU migration policy caused by differentiation, lies a deeper "fracture" on the values that underpin it. In this sense, it invites for a more careful examination of what could become a widening gap by examining especially the relevant case law of the CJEU on asylum in the aftermath of the "migration crisis".