Legal Solution vs. Discursive Othering: The (Dis)Integrative Effects of Supranational Differentiation

Abstract

Debates about differentiated integration are full of rhetoric extremes: while proponents often present it as a magic potion allowing the EU to thrive, critics portray the (non)participation of some Member States in selected policy projects as a deadly poison that lays the axe unto the roots of the unitary vision of legal supranationalism. This contribution contends that both positions exaggerate the significance of differentiation due to a widespread misunderstanding among legal academics and political actors about the significance of the law for the success or failure of the integration process. Against this background, a dual argument will be put forward. To begin with, differentiation can be accommodated with the essential features of supranational integration through law – notwithstanding repeated claims to the contrary. As a pragmatic tool, it allows the EU institutions to overcome a stalemate of decision-making, thereby deepening integration in diverse policy fields such as justice and home affairs, monetary union or defence. Nevertheless, a critical reappraisal of differentiation is warranted, which moves beyond legal-institutional arguments and considers how differentiation interacts with the broader crisis of European constitutionalism by undermining the legitimatory infrastructure of the European project.