European Law Outside its Borders: Differentiated Disintegration in Northern Ireland, Gibraltar and Cyprus

The withdrawal of the United Kingdom from the European Union triggered a rare but significant phenomenon in European integration: differentiated disintegration. Differentiated disintegration is a process of unequal reduction in the level, scope, or membership of the EU . In legal terms, the application of EU law in the UK has been progressively reduced to the retention of some provisions that are applied outside the EU borders. A special case of extraterritorial application of EU Law concerns Northern Ireland (NI), Gibraltar (GIB), and the UK’s Sovereign Base Areas (SBAs) in Cyprus (CY). These three territories have been affected by a conflict and share a legacy with the United Kingdom. For these reasons, the EU and the UK adopted three special Protocols attached to the UK's Withdrawal Agreement (WA), respectively, on NI, GIB, and CY. The article addresses the following research question: 'What are the implications of implementing the UK’s Withdrawal Agreement Protocols for European differentiated disintegration?'. This analysis disentangles the concepts of differentiated integration and differentiated disintegration from both a political and legal point of view. The first part of the article presents the conceptual framework. On the one hand, it frames the concepts of differentiated integration - internal and external - and differentiated disintegration and their differences. On the other hand, it analyzes Brexit as a phenomenon and the peculiarities of British Euroscepticism. The second section traces the UK’s membership in the EU, as a history of differentiation. The scope is to frame the United Kingdom’s participation in the EU as a parable going from internal differentiated integration to external differentiated disintegration. The legal analysis of the opt-outs granted to the UK will be accompanied by the political context. This article divides the UK’s membership into the EU in three phases. The first phase regards internal differentiated integration, and it goes from 1973, accession year, until February 2016. This section presents the opt-outs granted to the UK and PM Cameron attempt to negotiate a ‘new membership’ to obtain more differentiation as a Member State. The second phase goes from 2016 till 2020 and coincides with the Brexit negotiations and the transition period. This article argues that this phase is an expression of internal differentiated disintegration, as the UK was still a Member State. Once Art. 50 TEU was activated, and the UK refused the possibility to revoke the withdrawal notification, the intention of leaving the EU was clear and the decision was final. The last phase coincides with the post-Brexit era, showing the first example of European external differentiated disintegration. The scope is to shows how the UK’s membership moved from internal differentiated integration to internal differentiated disintegration, till external differentiated disintegration with the consequent diminishing of EU Law application. The third section focuses on extraterritorial application of EU Law in the three contested countries of Northern Ireland, Gibraltar and the UK’s SBAs in Cyprus. It shows what is left of EU Law after the disintegration phase. It argues that the residual application of European Law in these three contested territories is strictly linked to the role of the EU as a peacekeeper. The paper concludes with the implications of the Protocols’ enforcement on European differentiated disintegration.