Devolution and differentiation: regional variation in EU law

Abstract

For some years now, there has been a growing orthodoxy in EU legal studies which maintains that the EU project is less about achieving uniformity of laws across the Member States, and more about managing flexibility and differentiation. However, for the most part, space for differentiation is recognised only as between states or groups of states. The present paper moves beyond this level to explore the scope for local differentiation, at a sub‐state level. This inquiry has been motivated by the recent Horvath judgment, in which the European Court of Justice was asked whether differential implementation by the devolved administrations of the UK of certain EU law obligations was lawful. The paper places these developments alongside other judicial, legal and political developments, to demonstrate a growing recognition of the role of regions within the EU's multi‐levelled system of governance, revealing that the EU order is, in some respects, finally catching up with the realities of the rise of devolution and decentralisation taking place across Europe. However, it is submitted that there is further the EU could and should go in recognising, if not a ‘Europe of the Regions’, then a ‘Europe with the Regions’.

European networks, domestic governance and the second-order effects of Brexit

“…A clear indication of this is the importance Regions place on engagement with Europe, within the bounds of resource constraints. This engagement reflects the distinctive relationships that exist between the EU and its Regions, and are particularly pronounced in the case of the EU and the devolved nations in the UK whose devolution settlements have been shaped by the UK's EU membership (Hunt 2010). The relationships between Scotland, Wales, Northern Ireland and the EU reflect the devolution settlements, but also their different financial relationships with the EU, their key industries and the significance of the Single Market and the Customs Union, their culture and their political preferences (Minto et al 2016).…”

The Anglo-British imaginary and the rebuilding of the UK’s territorial constitution after Brexit: unitary state or union state?

“…277). The EU law concept of subsidiarity gives priority to relevant domestic legislatures' implementation of certain rules, particularly where EU Directives provide broad frameworks for law-making (Hunt, 2010). EU glue thus provided a flexible bond which allowed devolved institutions to create distinct legal arrangements within the UK.…”

The Routledge Handbook of British Politics and Society

“…The emergence of a Welsh legislative studies arena is a significant development in political science scholarship since 1999, the focus being placed on legislative institutionalisation (Bush, 2004;Rawlings, 2005;Watkin & Greenberg, 2018), differentiation (Hunt, 2010) and on the development of a Welsh legal identity (Navarro, 2012;Stevenson, 2013;Wales Governance Centre, 2016;Pritchard, 2017Pritchard, , 2019. The Commission on Justice in Wales, set up by the Welsh Government in 2017 to review the operation of the justice system in Wales provided further impetus for scholarly inquiry at the intersection of political and legal studies in Wales.…”