External differentiated integration : legal feasibility and constitutional acceptability

Abstract

The concept of external differentiated integration has received only modest attention from the legal community. As such, the concept’s contours have been shaped primarily by political science. There is therefore a pressing need for a stronger legal orientation to underpin discussions of this concept. This paper seeks to construct an analytical framework for a legal exploration of external differentiation and to map its ranging landscape. In assessing the legal feasibility and constitutional acceptability of external differentiation, the paper distinguishes between external differentiation that is driven by the conclusion of an international agreement such as the EEA Agreement, and external differentiation that flows from the adoption of an internal EU act, such as the General Data Protection Regulation. Alongside the legal analysis, the importance of the paper lies in developing an analytical tool to measure the degree of ‘legalization’ that is inherent in international agreements giving rise to external differentiation and in the recognition that external differentiation can be achieved as a result of unilateral instruments as well as through the conclusion of international agreements.