Wilful Non‐Compliance and the Threat of Disintegration in the EU’s Legal Order

Abstract

This article focuses on the problem of wilful non‐compliance with EU law and the threat it poses of (partial) disorderly disintegration within the EU’s legal order. Taking the example of migration and asylum policy following on from the 2015 migration crisis, I posit differentiated integration (DI), which occurs through processes that are formally mediated and collective, and non‐compliance, which is unmediated and unilateral, as alternative strategies for member states which are unwilling to accept further integrative steps. While DI does carry costs, including the risk of legal fragmentation, I argue that it is a valuable tool for pre‐empting wilful non‐compliance – a phenomenon which both exposes and compounds the normative limits of EU law and is, consequently, more corrosive of the EU’s legal order. Thus, the article suggests that the EU ought to be more open to DI, especially when legislating in policy areas that are highly politicised.

Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union

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The End of History in EU Law and Politics? Challenging Founding Narratives with a New Research Agenda

“…First, unlike the ICRG data, these data do capture temporal variation within member states. Second, the underlying trends in Figure 6 are plausible since they coincide with several cross-national crises plaguing the EU during this period -such as the Eurozone crisis, refugee crisis, and COVID-19 pandemic -leading to generalized and highly-publicized waves of noncompliance (Genschel and Jachtenfuchs 2018;Scicluna 2021;Thym and Bornemann 2020). For instance, during the 2015-2016 refugee crisis, human rights NGOs "increasingly denounced EU member states' violations of the right of asylum and accused the EU of turning a blind eye to non-compliance with the CEAS [Common European Asylum system]" (Schmalter 2018: 1330).…”