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

WORKING PAPER N. 03 - 2025 European Law Outside its Borders: Differentiated Disintegration in Northern Ireland, Gibraltar and Cyprus Jasmine Faudone, Dublin City University [email protected], [email protected] Abstract 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 1 . 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. 1 Franz Schimmelfennig and Thomas Winzen, Ever Looser Union? Differentiated European Integration (OUP 2022) 137–155. 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. Keywords Differentiated Integration – Extraterritorial Application of EU Law - Brexit – Northern Ireland – Gibraltar – Cyprus 1. Introduction 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 2 . 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 2 Franz Schimmelfennig and Thomas Winzen, Ever Looser Union? Differentiated European Integration (OUP 2022) 137–155. 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 show 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. 2. Theoretical Framework: EU Differentiated Integration vs. Differentiated Disintegration It is essential to start with a brief clarification of the theoretical framework. What is differentiated integration? What are its modes? How does it differ from differentiated disintegration? These questions are the object of this section. In 1996, Alex Stubb categorized differentiated integration. 3 When examine the different concepts of differentiated integration, he says, it is important to distinguish between form and substance. 4 For instance, multi-speed, variable geometry and à la carte, express different ways of differentiated integration, but difference in the substance. They are examples of differentiation in time, space and issue. Multi-speed integration EU is an example of differentiated integration in time. In this case, there are common objectives of integration, shared and driven by a core group of Member States, but pursued in different time. Variable geometry EU is a form of differentiation in space, which allows different levels of integration among Member States. Europe à la carte is the classic example of differentiation in matter, allowing Member States to choose policy areas of integration. This categorization is not entirely exhaustive, but it gives an idea of three different ways to pursue differentiated integration. From a constitutional perspective, differentiation has been analyzed as a process of differentiated integration. This phenomenon may as a combination of factor, such as the spread of Euroscepticism, or in nationalist Member States, willing to protect their sovereignty, or simply in wealthy Member States with a strong national identity. Being part of the EU, these State have institutional bargain power and are most likely to satisfy their demand for differentiated integration. As we will see in the next section, this negotiating power decreases if the State exits the EU, as it switches from a position of power to a position of demand. According to Bruno De Witte, the existence of a controlled system of differentiation became a structural characteristic of the EU legal order. 5 The functional reason is that it has proved essential for European integration. However, he had also noticed that the recourse to variable geometry was getting easy and accompanied by constitutional challenges suck as lack of transparency, accountability, and a neglect of intra-state solidarity. 6 De Witte underlined how the mechanism of 3 Alex Stubb, ‘A Categorization of Differentiated Disintegration’ (1996) 34(2) Journal of Common Market Studies 283 4 Ibidem. 5 Bruno De Witte, ‘Variable Geometry and Differentiation as Structural Features of the EU Legal Order’ in Bruno De Witte, Andrea Ott and Ellen Vos (eds), Between Flexibility and Disintegration: The Trajectory of Differentiation in EU Law (Edward Elgar 2017) 9–27. 6 Ibidem. flexibility could have contributed to EU disintegration. This ‘prophecy’ perfectly fits the case of the UK’s membership in the EU, as we will see in the next section. The line between integration and disintegration seems blur. The question to be answered remains: what is the difference between differentiated integration and differentiated disintegration? In a static perspective differentiated integration and disintegration are the same: EU Law provision is not applied uniformly across the Member States. In a dynamic perspective, differentiated integration moves towards the goal of harmonization, but not all the Member States participate, or not at the same time or in the same way. On the contrary, differentiated disintegration refers to a Member State lowering its level and scope of integration, such as diminishing the adherence to EU Law and policies. In other word, as dynamic concepts, integration represents an increase in the level and scope of EU membership, while disintegration represents a reduction of it. Differentiated differentiation can be internal or external. The United Kingdom became a unique and first example of differentiated disintegration in the history of the European Union. During the Brexit negotiations and transitional period, it was a case of internal differentiated disintegration, which turned into external differentiated disintegration after January 2020. 3. Beyond Nationalism: British Euroscepticism This article argues that Brexit is a process of progressive differentiation, from integration to disintegration. However, before going in depth with how differentiation has been used during the UK’s membership in the European Union, it is necessary to frame the bigger picture. This section disentangles the sources that led to the Brexit process. It provides an overview of the peculiarities of the British Euroscepticism, and of the British society. Baker 7 summarised the British post-war history in four stages of Euroscepticism. The first phase was the initial post-war until British membership in 1973. The second phase was short, and it lasted till the first referendum in 1975. The third period until 1988, and then from 1988 onwards. These four stages are important to grasp the development of Euroscepticism in the United Kingdom. Euroscepticism in the UK is not a simple ‘hostility towards the EU’. Stephen George broader vision defines it as ‘the opposition to the increasing power of the EU’. 8 Euroscepticism has more dimensions than simple hostility towards the European project. For George, Euroscepticism is having doubts about the form integration is taking. It means being sceptical about the benefits and advisability of further European integration and being hostile to the whole project. Later on, the infamous Prime Minister Cameron Bloomberg Speech will be analysed. It falls within George’s concept of Euroscepticism. Cameron was doubting the form of European integration and the benefits for the United Kingdom, pointing at how the EU should have changed. Stephen George 9 also argues that British Euroscepticism has been influenced by four prejudices: (1) hostility against France and Germany, (2) prejudices in favour of the Commonwealth, (3) an attachment to the idea of having a special relationship with the United States, (4) an attachment to the idea and values of a national parliamentary sovereignty. These prejudices might find their roots in the romanticized idea of the United Kingdom as a (former) great imperial power. This concept might as well justify the historical attachment to national sovereignty. However, in the Bloomberg Speech there is no reference to this sense of ‘grandeur’. The requests for more differentiation are justified by the simple 7 David Baker, Andrew Gamble, Nick Randall and David Seawright, ‘Euroscepticism in the British Party System: A Source of Fascination, Perplexity, and Sometimes Frustration’ in Aleks Szczerbiak and Paul Taggart (eds), Opposing Europe? The Comparative Party Politics of Euroscepticism. Volume 1: Case Studies and Country Surveys (OUP 2008) 93–116. 8 Stephen George, ‘Britain: Anatomy of a Eurosceptic State’ (2000) 22(1) Journal of European Integration 15–33. 9 Ibidem. geographical position: Great Britain is an island. Later, it is argued that Northern Ireland was treated as a ‘blind spot’ since the beginning of the Brexit process. Kuisma and Donoghue affirm that Brexit was essentially a process by which the different facets of British Euroscepticism were able to merge and be packaged in a way that made a cross-party alliance on the issue possible. 10 Initially, it was a one of the biggest fears after the referendum, was the possible domino effect. There is no evidence that the UK’s withdrawal from the EU would inspire new forms of Euroscepticism. The peculiarities of British Euroscepticism, which triggered Brexit, are unlikely to be replicated in other European countries. However, Brexit might have legitimized Eurosceptics, especially the negative narrative around the Eurozone and the migration crisis. According to Kuisma and Donoghue, the real question is to understand if the forces that led to Brexit could have been symptoms of a larger process of European disintegration. 11 The crucial point expressed by the authors is the idea of the British imagined community. This idea reinforced Euroscepticism and the four prejudices before mentioned. It has never been an issue between leavers and remainers, British vs Europeans. The leavers pushed the idea of nationalism, hence the idea of ‘British people’. Benedict Anderson’s work on imaginary communities is a useful tool to grasp this concept. 12 There is a strong connection between the development of the modern nation-state and the notion of heritage. 13 ‘Heritage’ is the container for a ‘unique Britishness’, part of the ‘belonging’ to a specific national identity and to ‘othering’. This is why many who voted for the UK’s departure from the EU hoped to regain control, regain what ‘once was.’ However, as the community is imagined, so is the history behind the heritage defended. 14 The idea of a ‘imagined community’ is that what binds nations together is a constructed sense of identity. ‘Nationalism is not the awakening of nations to self-consciousness; it invents nations where do not exist’. The leavers were able to imagine a united British community and to provide it with a sense of uniqueness and supremacy, a senso of exceptionalism over other nations (or blocks). According to Anderson: ‘it is an imagined community’ since, regardless of the internal inequality, the nation is perceived as horizontal. In terms of the Leave campaign, a British identity was constructed. Those who supported the remain, and identify as European, are laying on a political identity, and are supporting mostly the benefits given by the EU, rather than their sense of Europeanness. It could be understood as being pro UK in the EU, rather than being in favour of European integration in general. According to Kuisma and Donoghue, the remainers position falls into the same trap, as it elevates the UK in a supreme and exceptional position within the EU. Both positions demonstrate a gap in the knowledge of the UK's history, and especially its history in the EU. 15 There are at least two considerations to make at this stage. On the one hand, the idea of benefitting from the EU, rather than supporting European integration, explains Cameron’s requests in the Bloomberg speech. He clearly stated he was questioning the shape of European integration, and he wanted to address the UK’s position in a practical manner. On the other hand, the constructed idea of a British society left behind Northern Ireland. In the Brexit discourse, Northern Ireland was treated as a blind spot. The practical issues regarding the border and peacekeeping and the respect of the Good Friday Agreement provisions came up only during the negotiations phase. It demonstrates that the idea of an imaginary 10 Mikko Kuisma and Matthew Donoghue, ‘Brexit as a Phenomenon’ in Benjamin Leruth, Stefan Gänzle and Jarle Trondal (eds), The Routledge Handbook of Differentiation in the European Union (Routledge 2022) 605–618. 11 Ibidem. 12 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso, London 1991). 13 John Pendlebury and Loes Veldpaus, ‘Heritage and Brexit’ (2018) 19(3) Planning Theory and Practice 448–453. 14 Mikko Kuisma and Matthew Donoghue, ‘Brexit as a Phenomenon’ in Benjamin Leruth, Stefan Gänzle and Jarle Trondal (eds), The Routledge Handbook of Differentiation in the European Union (Routledge 2022) 605–618. 15 Ibidem. and superior British society shadowed even another Constituent country. Indeed, the legal solution was to keep Northern Ireland close to the EU, confirming that the application of EU Law is acceptable only when functional to a practical matter. A critique that can be moved is that Brexit represents a rationalization and simplification of a complex series of social relations and events leading up to the referendum and the withdrawal from the EU. Moreover, Brexit is the representation of ideologically assumptions. For instance, the word stands for Britain only, not considering Northern Ireland as part of the leaving process. Among scholars Brexit remains a cause of effects, rather than an effect of causes. 16 The question should not be whether Brexit, meant as UK’s withdrawal from EU, can create the domino effect. The question should be: to what extended domestic politics can influence supranational politics? The scholarship has been focused on Brexit as an origin of crisis, rather than a symptom of deeper fractures. 17 The current threat to the European integration is the constellation of policy decisions, and political and economic and social crises that contributed to the UK’s withdrawal from the EU. It does not mean that leavers were against the EU, they were most likely using it as a container of internal problems. The issue is not the disintegration but what causes it. The following section goes in-depth into the use of differentiation in the United Kingdom’s history in the EU, as it has been a feature of its membership. The point is the same but more in political and legal terms: the withdrawal was a process, and the disintegration resulted from progressive differentiation. 4. The UK’s Membership in the EU: a History of Differentiation Compared to other European countries, the United Kingdom has a special history which has influenced its relationship with the EU. The legacy of the British colonial empire has left a sense of ‘grandeur’ that has translated into a particular attachment to the concept of national sovereignty. Since the beginning of its membership, the UK has sought differentiated integration solutions to safeguard its sovereignty. This article reconstructs the UK's membership in the EU, describing it as a parabola from internal differentiated integration to external differentiated disintegration. As mentioned in the introduction, this article divides the UK’s membership in three phases: internal differentiated integration (1973-2016); internal differentiated disintegration (2016-2020); external differentiated disintegration (2020-present). The first phase is described with two major moments: the UK’s Accession to the EU and the opt-outs granted in the following years; PM Cameron negotiation for a ‘New membership’. This section illustrated how legal differentiation has always characterized the United Kingdom’s membership in the EU, and the progressive demand for further differentiation. The following section considers the second and the third phase. The article argues that the withdrawal negotiations and transitional period can be considered as internal differentiated disintegration. Finally, the post-Brexit era is addresses as the first unique example of European differentiated disintegration. 4.1. Internal Differentiated Integration: 1973-1997 The first phase of the British EU membership was characterized by economic concerns regarding the European integration project - political and social aspects which strengthened Euroscepticismfollowed by opt-outs in four major policy areas – legal differentiation. In the early 1950s, France, West Germany, Italy, Belgium, Luxembourg and the Netherlands laid the foundations of what is now 16 Ibidem. 17 Ibidem. the European Union. In 1952 with the European Community of Steel and Coal (ECSC) and in 1957 with the Treaty of Rome (European Economic Community – EEC). The United Kingdom did not take part into this wave of European integration which followed the end of the second world war. In the 1950s the United Kingdom still enjoyed trade connections with the Commonwealth countries, following the principle of ‘imperial preference’ declared in the 1932 Import Duties Act. 18 The United Kingdom started thinking about joining the EEC in the late 1950s, due to the decline of its economic performances. A first application was made in 1960, vetoed by France the following year. French President De Gualle expressed concerns about the Common Agricultural Policy (CAP) which was a pillar for the French economy. According to President De Gualle, the United Kingdom would not have followed the general EEC integration model, having different economic interests than the Six EEC countries. 19 De Gualle was afraid that letting the UK into the EEC might foster the Americanisation of Europe. He was in favour of further and deeper integration rather than EEC enlargement. The United Kingdom knocked at the EEC doors again in 1967. British Prime Minister Wilson (Labour Party) started again the negotiations, and on 11 May submitted the second application to join the EEC, accompanied by Ireland, Denmark and Norway. On 27 November 1967, French President De Gualle vetoed the UK’s Accession to the EEC for the second time. His concerns did not change, despite PM Wilson attempt to ease the tension. The talk reopened only after the end of De Gualle’s mandate. The United Kingdom finally joined the EEC on 1 January 1973, together with Ireland and Denmark. Immediately after, in 1975 the United Kingdom held a referendum asking whether it should stay in the European Community. 67% voted to stay. However, this first referendum shaped the British attitude towards the EU project. Foreign Secretary James Callaghan said the matter was treated as a ‘business transaction’. 20 The idea that pooling sovereignty to other European Member States was a utilitarian calculation of costs and benefits, was expressed in the referendum question. Indeed, it referred to the participation in the European Market: ‘Do you think that the UK should stay in the European Community (Common Market)?’. Glencross argues that British Euroscepticism was born on the concerns regarding the costs of European integration. 21 Thus, the fact that the membership was questioned after only two years and as a ‘business matter’ is not surprising. The same attitude was shown during the 2016 referendum campaign but with a fundamental difference: the core argument of safeguarding British sovereignty, expressed by the infamous slogan ‘taking back control’, was accompanied by populist concerns about migration flows. From a legal perspective, the willingness to participate in the European integration project for the sole economic benefits was crystallized as opt-outs. During its membership, the United Kingdom obtained four opt-outs in the following areas: (a) Eurozone, (b) Schengen, (c) Justice and Home Affairs and (d) the European Charter of Fundamental Rights. In 1992 the Maastricht Treaty was concluded, and the United Kingdom was granted an opt-out clause. It was not required to participate in the third stage of the European Monetary Union (EMU) integration, meaning staying outside the Eurozone. The conditions were specified in Protocol No 25 to the Maastricht Treaty. 22 The Protocol No 25 states that the United 18 UK Parliament, ‘Into Europe’ (2016) https://www.parliament.uk/about/livingheritage/transformingsociety/tradeindustry/importexport/overview/europe/ accessed [24 May 2025]. 19 University of Luxembourg Centre for European History, ‘Historical Events in the European Integration’ https://www.cvce.eu/en/education/unit-content/-/unit/02bb76df-d066-4c08-a58a-d4686a3e68ff/e491121c-8e37-473fafe6-ff52e349c1aa accessed [24 May 2025]. 20 Marlene Wind, ‘Brexit and Euroscepticism’ in Federico Fabbrini (ed), The Law and Politics of Brexit (OUP 2017). 21 Andrew Glencross, Why the UK Voted for Brexit: David Cameron’s Great Miscalculation (Palgrave Studies in European Union Politics 2016). 22 Protocol No 25 to the Maastricht Treaty on Certain Provisions Regarding the United Kingdom https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=legissum:l25060 accessed [24 May 2025]. Kingdom’s powers in the field of monetary union policy are not affected by the Treaty; it is not subject to the provisions regarding excessive deficit; it is not concerned by the provisions regarding the European Central Bank or the European System of Central Banks or by the decisions taken by them. In addition, the United Kingdom announced the five economic tests which should have been met before moving towards the third stage of EMU integration. The five economic tests were based on: convergence of business cycles between the UK and the EU, flexibility, investment, financial services, growth, stability and jobs. Although the UK never joined the European Monetary Union, it is curios that it had established economic conditions additional to the Maastricht Treaty. The five economic test was performed in 2003, with a negative response. The Schengen Treaty was signed on 14 June 1985, and it abolished border checks. The United Kingdom and Ireland never signed it, granting preference to the Common Travel Area between the two countries. When the Schengen Treaty was incorporated into the Amsterdam Treaty in 1997, the United Kingdom and Ireland were granted an opt-out for implementing it. 23 The Schengen Treaty provides that the UK – and Ireland -might request participation into some parts of it. 24 Despite the opt-out, the UK used the Schengen Information System, an intergovernmental database often used for law enforcement. In 1999 the UK had requested to participate in Title III of Schengen acquis regarding Police Security and Judicial Cooperation. 25 The UK’s participation in EU legislation on Justice and Home Affairs (JHA) was regulated by Protocols 19 and 25 to the TEU and TFEU, the opt-out was originally granted with the Treaty of Amsterdam. Similarly to Schengen, the UK had the chance to opt-in for certain measures. The UK had to notify to the Council its intensions its intention to participated within three months of a proposal being presented, with no possibility of opting out later. 26 According to the Annual UK Government Report, the British Government recognized the benefits of the cooperation in JHA. However, it has always reserved the right to evaluate case by case. 27 The decision to opt-in was subject to both British Chambers’ scrutiny before the Government could agree them in the Council. In particular, the decision was evaluated by the European Scrutiny Committee within the House of Commons, and by the European Union Committee within the House of Lords. This large margin of appreciation shows together with the control mechanism shows the strong willingness to keep sovereignty on Justice and Home Affairs. This issue will come back in the next section, namely in both the negotiations for a ‘new membership’ and later during the withdrawal negotiations. Finally, the United Kingdom did not have a full opt-out from the European Charter of Fundamental Rights. Protocol No 30 to the Lisbon Treaty clarified the limits to its application in the UK. 28 In NH vs Home Secretary 29 the European Court of Justice itself newer recognized a full disapplication, but 23 Council Decision 2000/365/EC concerning the arrangements for the United Kingdom’s participation in certain provisions of the Schengen acquis [2000] OJ L131/43. 24 Art 4 of Protocol No 19 to the TEU and TFEU on the Schengen acquis. 25 Council Decision 2000/365/EC concerning the arrangements for the United Kingdom’s participation in certain provisions of the Schengen acquis [2000] OJ L131/43. 26 Protocol (No 21) on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice [2007] OJ C306/156. 27 UK Government, ‘JHA opt-in and Schengen opt-out Protocols’ https://www.gov.uk/government/publications/jha-opt-in-andschengen-opt-out-protocols--3 accessed [24 May 2025]. 28 Protocol No 30 to the Lisbon Treaty on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:12008E%2FPRO%2F30accessed [24 May 2025]. 29 NH v Home Secretary (Case C-411/10) EU:C:2011:514 https://curia.europa.eu/juris/liste.jsf?num=C-411/10 accessed [24 May 2025]. a reduction of scope regarding certain areas, especially social rights. 30 Indeed, Art. 1 (2) of Protocol No specified that: ‘Nothing in Title IV of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.’ In 1992 the UK had been granted an opt-out from the Social Pillar of the Maastricht Treaty. The Blair Government abolished it in 1997, as part of the Amsterdam Treaty. From this brief reconstruction it appears that the enforcement of social rights was considered in economic terms, as a possible burden for the UK. Despite the extensive opt-outs in major policy areas, in 2013 the United Kingdom evaluated again the cost and benefits of being part of the European Union. The issue of ‘taking back control’ became central in the national politics. In the public debate, the belonging to the European project was presented as a source of bureaucracy and expenditure for the State and the jurisdiction of the European Court of Justice was a constraint. The United Kingdom demanded further differentiation, leading PM Cameron to negotiate a 'new membership'. 4.2. Deepening Internal Differentiated Integration: 2013-2016 On 23 January 2013 Prime Minister Cameron gave the infamous Bloomberg speech. 31 This speech could be considered the beginning of the disintegration phase. Even though the intention at the time was to negotiate further differentiation, not leaving, the Bloomberg speech led to the negotiations for a new membership and later to the Brexit referendum. It could be also considered the first major Euroskeptic speech, since Margaret Thatcher’s Bruges speech in 1988. 32 Prime Minister Cameron addresses the issue of how to change the EU to ensure prosperity. He confirms that the United Kingdom has always had a practical vision of the EU, as source of prosperity, stability, freedom and democracy. He said that the United Kingdom has been ‘passionate in defence sovereignty’ as ‘our geography has shaped our psychology’. He justifies this position as the UK is an island, so with geography rather than mentioning the colonial and imperialist history. At the time, PM Cameron specified that ‘the UK was committed to play an active part’ in the EU. He isolated three major challenges: the Eurozone, European competitiveness and the gap between EU and its citizens. If those challenges were not going to be addressed, the risk was that British citizens would drift towards the exit. Cameron expressed concerned about areas in which the UK opted out, like Eurozone, or was always careful to maintain sovereignty. At this stage, Prime Minister Cameron wished for relations with the EU with the UK in it. He affirmed five principles for the 21st century European Union. Among these he stressed the importance of flexibility, and he mentioned the countries who were not part of the Eurozone or Schengen. In other words, he presented differentiation to move forward. He supported the idea of a flexible Europe, where ‘power must be able to flow back to the Member States’. The Single Market does not need a full harmonization to function, according to Cameron. Moreover, he mentioned that national parliaments should have a bigger role to ensure democratic accountability. ‘Our participation in the single market, and our ability to help set its rules is the principal reason for our membership of the EU. So it is a vital interest for us to protect the integrity 30 British Institute of International and Comparative Law, ‘FAQ – Brexit and the Charter – Part One’ https://www.biicl.org/documents/1950_faq_-_brexit_and_the_charter__part_one.pdf?showdocument=1#:~:text=The%20Court%20of%20Justice%20of,”%20(at%20para%203.6) accessed [24 May 2025]. 31 UK Government, ‘Prime Minister Cameron Discussed the Future of the European Union at Bloomberg’ (23 January 2013) https://www.gov.uk/government/speeches/eu-speech-at-bloomberg accessed [24 May 2025]. 32 Margaret Thatcher Foundation, ‘Speech to the College of Europe’ (20 September 1988) https://www.margaretthatcher.org/document%2F107332 accessed [24 May 2025]. United Kingdom the violation of the Treaty of Establishment. Indeed, the United Kingdom is a Guarantor of the Cyprus Republic and independence. Under the Treaty of Establishment, the United Kingdom has an obligation to refrain from creating custom posts on the island. The preservation of Protocol No 3 and its partial reproduction into the Withdrawal Agreement Protocol spared Cyprus the same social and political frictions that Northern Ireland experienced during the Brexit negotiations. Concerning the movement of persons, the United Kingdom exercises the control on persons crossing the external boundaries of the SBAs, meaning the border with the internationally unrecognized Turkish Republic of Northern Cyprus. In this case, a third country – the UKis responsible for enforcing EU Law measures. The UK authorities are in cooperation with the Cypriot authorities, contrary to the situation in Gibraltar. The question to be answered is: why some provisions of EU Law survived in these three Protocols? The solution negotiated for these three territories was the extraterritorial application of EU Law. The regional differentiated application of EU Law has two main reasons in these three territories: safeguarding the constitutional status deriving from the conflicts experienced, and the role of the European Union as peacekeeper. The Withdrawal Agreement Protocols aim to create continuity with the territories former EU legal status. The Protocols attached to the Withdrawal Agreement exist as these territories experienced a conflict (or a claim). Concerning the role of the European Union in the peace process, the EU is not an initiator of peace-making itself. However, it is often an added value to make conflict resolution quicker. 59 The EU is better equipped to carry conflict resolution before the state access the EU, rather than after. This aspect is particularly visible in Cyprus, where talks about peace have been in a stall since its accession to the EU. After the failure of the Annan Plan V, there has been no other concrete proposal for peace. This contradiction is defined as ‘the paradox of the Europeanisation of intrastate conflicts’. 60 After the accession of any candidate state, the Union tends to accommodate the conflict within its political and legal order. Brexit offers a unique opportunity to understand how the detachment of a state from the EU structures affects border conflicts and what are the mechanisms that can be used to manage those tensions. Skoutaris thinks of territorial differentiation as a tool that has been used in the Brexit negotiation to address the tensions created in Northern Ireland, Gibraltar and Cyprus. 61 The UK and the EU have extended the application of EU Law outside the Union’s territory, to keep the status quo – hence peace and stability – in the three contested territories. The link with the UK and the constitutional status of the three territories influenced the way EU Law was applied when the UK was still a Member State. For the same reason, it influences the way Brexit was negotiated, and legislation was adopted. It influences the way as well Brexit is enforced. Brexit threatened the balance in those territories, and the role of the EU as peacekeeper. Translating the campaign slogan ‘Take back control’ in legal terms, means ‘Stop applying EU Law’. However, the presence of the European Union served to keep stability, and the application of EU Law preserved those areas’ economic interests. The decision of leaving the single market might work for the United Kingdom, but it did not work for territories that share a border with the EU, or which are a Member State like Cyprus. Hence, extraterritorial application of EU Law seems like an appropriate legal solution. 59 Nikos Skoutaris, ‘Border Conflicts after Brexit’ in Benjamin Leruth, Stefan Gänzle and Jarle Trondal (eds), The Routledge Handbook of Differentiation in the European Union (Routledge 2022) 649–662. 60 Ibidem. 61 Ibidem. 6. Conclusions Brexit is the first case of European Differentiated Disintegration. For the first time in the history of the European Union, a (former) Member State decided to seek a level of flexibility never explored before. To fully grasp to what extent differentiation has been used, and for what scope, Brexit should be seen as a process. The United Kingdom is not ‘the awkward neighbour’, but a former Member State respecting a democratic referendum, coherent with its differentiation history. This article argues that the UK’s membership in the EU could be seen as a parabola from internal differentiated integration to external differentiated disintegration. Contrary to other scholars, this thesis argues that the disintegration phase started before the actual departure from the EU. As the United Kingdom was formally a Member State during the negotiations and the transition period, the disintegration was internal. After Art. 50 TEU was activated, the political discourse indicated clearly the intentions to leave. PM May and Johnson never showed second thoughts. Neither did Northern Ireland Prime Minister Foster and Vice PM McGuinness, despite the delicate situation in their country or the fact that NI voted to stay in the EU. Moreover, the European Court of Justice stated the possibility to revoke the withdrawal notification with the Wightman judgement in December 2018. The United Kingdom never look back. The second main argument of this article evolves around the concept of ‘multiple Brexit’ and the use of regional differentiation and extraterritorial application of EU Law. This process had a different impact on Northern Ireland, Gibraltar and Cyprus. Regional differentiation is not a novelty for European Law. Neither is the extraterritorial application of EU Law. However, it is the first case of European Disintegration involving three contested territories. Differentiated Brexit is a solution that reflects the needs and specificities of the territories involved, especially in the case of the three contested regions of Northern Ireland, Gibraltar and Cyprus. The extraterritorial application of EU Law is the legal tool that the parties found appropriate to avoid breaking international law and previous international treaties – such as the Good Friday Agreement or the Treaty of Establishmentand to keep peace and balance in fragile situations. New borders were born, in three territories already affected by recent conflicts, claims, or partially occupied. Differentiated solutions for these territories are not justified by geography alone – e.g. extraterritorial application of EU Law applies for remote islands like the French Overseas Territories. Differentiation was needed due to fragile political situation linked to the past conflicts or claim, and to the constitutional status in the United Kingdom. From the United Kingdom perspective, differentiation in Gibraltar and Cyprus was not considered a threat for the UK’s constitutional integrity, as they have a more distant constitutional status than Northern Ireland. It is easier to justify differentiated relations for an overseas territory with a high level of autonomy – Gibraltaror to simply confirm the previous level of differentiation – like in the SBAs in Cyprus. However, the issue was raised in the case of Northern Ireland. The impact of these territorial differentiated solutions has certainly been stronger in Northern Ireland, being one of four constituent nations of the United Kingdom. It might be argued that differentiated Brexit reflects the results of the 2016 referendum vote. Scotland, Northern Ireland and Gibraltar voted to remain. Even if it is not part of this analysis, the Scottish government argued immediately in favor a differentiated solution, to keep Scotland closer to the EU. While a regional differentiated solution was rejected for Scotland, it was adopted for Northern Ireland, Gibraltar and the SBAs in Cyprus. This shows that leaving the European single market threatened the political and economic stability of the three territories. Moreover, it is not certain that during the referendum campaign, the supporters of ‘leave’ had considered the consequences for these three regions. In conclusion, while David Phinnemore considers the three Protocols attached to the Withdrawal Agreement in contrast with the disintegration dynamic that the UK was seeking with Brexit, this article argues that they are coherent with the scope of peacekeeping. He affirms that while Brexit is an overall process of differentiated disintegration, there are portions of a former Member State that keep a different, higher level of integration. This is technically true. However, new forms of differentiated disintegration were adopted to address unique circumstances and find practical solutions. The extraterritorial application of EU Law in Northern Ireland, Gibraltar and Cyprus does not pursue the scope of integration with the European Union. The legal reasoning for this flexible and creative solution is the EU role as peacekeeper, and the need to maintain stability in these contested territories. Otherwise, why would a former Member State that wanted to ‘take back control’ would accept to apply European Union Law? The question to be answered it whether the differentiated arrangements envisaging the extraterritorial application of EU Law is sufficient to address the postBrexit tension in the three contested territories. The Northern Ireland Protocol full operation is subject to a democratic consent vote potentially every four years. The Protocol could be politicized continuously, and this might affect its implementation, for better or worse. The Windsor Framework itself is first evidence that politization of the Protocol might block its implementation or unblock it. In Gibraltar, the politics between the actors involved are blocking the Protocol enforcement. The preliminary conclusion is that in this case the differentiation has not worked – not yet. Finally, the differentiation in Cyprus is working as it reproduces the former legal status quo.