Wednesday, 31 October 2012

Scotland and the EU - No.2 ~ EU membership?

Inverness
Updated 2nd November

IF Scotland eventually leaves the United Kingdom, then would it continue to be a member of the European Union?  Further, would England/Wales/Northern Ireland (EWNI) remain a member given that it is currently the United Kingdom of Great Britain and Northern Ireland which is a member.  These questions have been under consideration for some time as is shown by Commons Library Note of 8th November 2011 - Scotland, Independence and the EU.

The Treaty on European Union (TEU):

Article 49 of TEU states:

"Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.



The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State.

This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements."

Clearly, Art 49 applies to a European state seeking membership and is silent about the position where an existing member state changes by a part of that state seceding and becomes a separate state.

The position post independence - The Commons Note November 2011:

The Commons Library Note of November 2011 sees at least three different possibilities under international law for a newly-independent Scotland: continuation and secession (the rest of the UK would retain its treaty obligations and membership of international organisations, but Scotland would not); separation (both entities would retain them); and dissolution (both would lose them).

There is no clear method of determining which possibility would apply BUT, crucially, the Commons Note indicates that the position could be negotiated between the parties prior to independence.  The Note also indicates [para. 2.4] that the general assumption within the UK is that an independent Scotland would remain a member even if detailed terms would require negotiation.  It does not follow that the EU would adopt such a view [para. 2.6].  In 2004, Eluned Morgan MEP  asked whether a newly independent region would have to leave the European Union then apply for membership afresh, and whether an application of this type would require a re-writing of the Treaties and the unanimous support of the existing Member States.  The Commission’s answer was that the newly independent state would be outside the EU and would need to apply for membership of the EU in the same way as any other non-member.

"When a part of the territory of a Member State ceases to be a part of the state, e.g. because that territory becomes an independent state, the [European] treaties will no longer apply to that territory. In other words, a newly independent region would, by the fact of its independence, become a third country with respect to the Union and the treaties would, from the day of its independence, not apply anymore on its territory."

An alternative position?  Aidan O'Neill QC ~ the Citizen's viewpoint:

On 14th November 2011, Aidan O'Neill QC published a post on Eutopia Law - "A Quarrel in a Faraway Country?: Scotland, Independence and the EU."  O'Neill suggests that, rather than analysing the matter from the classic viewpoint of public international law, the issue should be considered from the viewpoint of the individual EU citizen since nationals of member states are EU citizens by virtue of Article 20 of the Treaty on the Functioning of the EU (TFEU)

Art 20.1. "Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship."  Art 20 then proceeds to give the citizen particular rights.

O'Neill then considers what possible view might be taken by the Court of Justice of the EU (CJEU) were the matter to be raised there.  Seen from that angle, the question to ask is whether the CJEU would consider that Scottish independence required that all (or any portion) of the previous UK citizenry thereby be deprived of their acquired rights as EU citizens?

Given the CJEU’s high theology of the primacy of EU law, and of EU citizenship as being “the fundamental status of nationals of the Member States”, O'Neill suggested that the most likely position that the Luxembourg court would take, if faced with the question of Scottish independence, would be the second scenario – “separation" - i.e. both Scotland and EWNI retaining membership.

If this is right, the CJEU would rule that Scotland and EWNI should each succeed to the UK’s existing membership of the EU, but now as two States rather than as one.  Such a ruling by the Court would affirm the primacy of EU law over national and international law, confirm the role of the CJEU as the final arbiter on such weighty matters of State(s), and be presented as EU law re-connecting with, and protecting the acquired rights of, individual EU citizens.

The very form and structure of the EU Treaties might also lead the CJEU to refuse to countenance the possibility of any form of automatic secession from the EU, whether by the splitting of a Member State into two or more international persons or by any other mechanism not expressly provided for in the Treaties.

The EU Treaties have been concluded for an unlimited period (see Article 53 TEU).  Indeed, until the insertion of a new Article 50 TEU by the 2007 Lisbon Treaty, the Treaties contained no provision for the secession or unilateral withdrawal of Member States from the EU.  Before that, a State or part thereof might leave the EU not by unilateral act, but only after negotiation and agreement; thus, in 1985, Greenland left the EU after formal amendment of the Treaty. Article 50(3) TEU now provides that the Treaties shall cease to apply to a Member State from the date of entry into force of any withdrawal agreement; or failing which, two years from the date of notification of withdrawal has formally been given by the Member State to the European Council. In sum, a Member State can now lawfully get out of the EU, but only by timeously and expressly applying so to do.

Loch Avon - Cairngorms
Business for New Europe ~ a viewpoint:

A further document worthy of consideration was published in March 2012 by Business for New Europe -  Scottish Independence and EU Accession  A number if important areas are considered such as the Euro; EU Budget, Schengen Area and Justice matters. 

It is argued that, as a result of Article 49 TEU, Scottish accession to the European Union would require the unanimous approval of existing member states but there is less clarity, however, about the accession procedure that would be applied to a Scottish candidacy.  Would a full application process be required or might some shorter - even "fast track" - process apply?

Much might depend upon the nature of Scotland’s application – whether it was prepared to accept all membership criteria and negotiate only over institutional questions, or whether it wished to pursue specific exemptions from EU rules.  The UK currently has a number of special arrangements - e.g. the Euro; Schengen; Budget rebate etc.

The stance of the EU would also be influenced by the strength of concern about a Scottish precedent providing inspiration for secessionist ideas in other member states. This concern might also affect its willingness to permit Scottish derogations or the willingness of some member states to agree to a Scottish application.

There are substantive subjects about which an independent Scotland might wish to negotiate: the euro, budgetary contributions, the Schengen area, and justice and home affairs. In each case, Scotland’s stance is likely to be influenced by domestic politics and the need to reassure public opinion about the consequences of independent EU membership.

Any assumption of a fast track to accession is clearly premature, but it cannot be excluded either.

Summary:

It cannot be automatically assumed that Scotland would remain in the EU in the event of its secession from the UK though, as Aidan O'Neill QC argues, a good case - based on the EU citizenship of those who are now UK nationals - could be made for both Scotland and EWNI being separate members.  Also, were the question to reach the CJEU, it might be held that the Treaty on European Union Art 50 did not countenance automatic loss of EU membership but only permitted leaving on negotiated terms.

A neat and tidy public international law solution does not appear to exist.  As Aidan O'Neill QC states - Realpolitik must take over and a negotiated solution would be needed which retains both Scotland and EWNI within the EU.  Any negotiated position would seem to require the unanimous approval of existing member states.

Basic fairness to the population surely requires some clearer view of the position regarding the EU before votes are cast and this position could be clarified by negotiation between the interested parties.  Furthermore, greater clarity is needed on the fine detail of EU membership post Scottish independence.  Numerous matters come into question including the euro; existing UK opt-outs; the existing UK rebate etc.  There will also be particular difficulties between Scotland and EWNI in relation to matters such as defence, north sea oil etc.

Even negotiation is fraught with peril including the possibility that negotiating with the EU might result in membership but on much less favourable terms.  However, that is a political dilemma.


Other materials:

Political Studies Association - Scottish independence - Media briefing pack  Interesting viewpoints from Charlie Jeffery (University of Edinburgh), Michael Keating (Aberdeen), Dr Nicola McEwen (Edinburgh) and Dr Karen Henderson (Leicester).

Scotland and the EU - No.1 ~ Does legal advice exist? 

Update 2nd November:

The Guardian 1st November - Westminster rejects Alex Salmond claim on Scotland's EU membership
The article states - The UK government says an independent Scotland would have to apply as a new member state to join the European Union, with uncertain consequences.

In a brief statement issued on Thursday, Westminster hinted strongly that its legal advice directly contradicted the claim by Scotland's first minister, Alex Salmond, that, if Scotland voted for independence, it and the rest of the UK would need to reapply to join the EU as newly formed states.

The UK government statement stressed that, unlike the Scottish government, it had obtained formal advice from its law officers and that Scotland would have to negotiate the terms of its EU membership with the UK and all other 26 member states.

It said: "This government has confirmed it does hold legal advice on this issue. Based on the overwhelming weight of international precedent, it is the government's view that the remainder of the UK would continue to exercise the UK's existing international rights and obligations and Scotland would form a new state.

"The most likely scenario is that the rest of the UK would be recognised as the continuing state and an independent Scotland would have to apply to join the EU as a new state, involving negotiation with the rest of the UK and other member states, the outcome of which cannot be predicted."

Referring to statements by European commission president, José Manuel Barroso, and his deputy, Viviane Reding, that a newly independent country would be seen as a new applicant, it added: "Recent pronouncements from the commission support that view."



Sunset over Oban

8 comments:

  1. Whilst in Belfast this thought struck me - the "Union" is all about the UK, Eng, Scot, Wales, N.I. If Scotland quits there is no "Union" and the main link to Britain is via a foreign country. Would Wales stay as a junior partner? Would Northern Ireland given it's racial and religious links to southern Scotland?

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    1. Yes Ciaron - so many questions and few answers. The Scottish Independence vote could well have ramifications far beyond the borders of Scotland.

      This is why I support the idea of the Constitutional Convention for the UK - see:

      Parliament 1

      Parliament 2

      This idea has received only minimal publicity as far as I can see but it deserves more and merits very serious consideration. We see too much political tinkering with bits and pieces of what lawyers refer to as "constitutional law." The whole approach is incoherent and a convention along the lines suggested would, I think, help to bring some sanity to the debate.

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    2. Ed (not Bystander)1 November 2012 22:16

      The UK constitution seems to serve us rather better than the US one serves them. Why fix what isn't broken?

      Delete
  2. An exceptionally wise and useful post, if I may respectfully say so. The UK government statement quoted in the Guardian article of 1 November is especially important and it's extraordinary that it hasn't apparently been more widely reported and discussed. I can't find a full text of the statement on any official UK government website! (The website address, helpfully quoted in the post above, is http://www.guardian.co.uk/politics/2012/nov/01/alex-salmond-scotland-eu-membership?commentpage=last#end-of-comments.)

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  3. See also Brian Barder's blog - Scottish Independence Referendum - two reckless gamblers


    On the Andrew Marr show (Sunday 4th November) Ian Duncan Smith (Works and Pensions Secretary) indicated that a referendum on the UK's EU membership is possible - Telegraph 5th November. In the UK, there is considerable disillusion with the EU with its ever increasing budgetary demands and the major problems with the single currency.

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  4. I don't believe that any prime minister of a mainstream political party would dare to risk a referendum in the foreseeable future on whether the UK should remain a member of the EU: partly because of the extremely high risk that the result would be a majority for leaving the EU (which all politicians of sound mind know very well would be a catastrophe for Britain), and partly because the EU is currently in violent flux and it's going to be impossible for some years to know how things will work out, and especially to foresee the success or failure of attempts to integrate the Eurozone and the likely consequences for the UK if the Eurozone does become tightly integrated. The dire unpopularity of the EU in Britain -- and nowadays in many other parts of Europe too -- stems partly from the Union's failures and flaws but at least equally from a feeble and irresponsible lack of inspiring and educative leadership from the more progressive wing of the Conservative party, now all but extinct, and above all from the Labour party. The distinguishing feature of almost all our present political leaders is cowardice.

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