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

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.