European Papers (Feb 2023)
Accommodating Diversity through Legislative Differentiation: An Untapped Potential and an Overlooked Reality?
Abstract
(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.
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