Accommodating Diversity through Legislative Differentiation: An Untapped Potential and an Overlooked Reality

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 seri-ously 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 flexibil-ity 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 legis-lative processes is required to further enhance the potential of differentiated legislation.