If "independence" means that Scotland withdraws from the United Kingdom, then some interesting questions are raised and one of them is whether Scotland would be able to remain a member of the European Union. This question is discussed in posts in Firm Magazine 9th May 2011 "Independence: the legal questions" and 26th October 2011 - "UK government lawyers declare an independent Scotland would automatically secede from the EU." In this context, it is important to see just what the European Treaties have to say about States joining and leaving the EU.
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.
1. Any Member State may decide to withdraw from the Union in accordance with its own
2. A Member State which decides to withdraw shall notify the European Council of its intention.
In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude
an agreement with that State, setting out the arrangements for its withdrawal, taking account of the
framework for its future relationship with the Union. That agreement shall be negotiated in accordance
with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on
behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the
withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless
the European Council, in agreement with the Member State concerned, unanimously decides to extend
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council
representing the withdrawing Member State shall not participate in the discussions of the European
Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the
Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the
procedure referred to in Article 49.
There is no doubt that Scotland is only a member of the EU by virtue of being part of the United Kingdom. Thus, if Scotland secedes from the U.K. then, it may be, that it would have to apply under Article 49 to accede to the EU. The precise position is not clear since there is no clear precedent for it and the Treaties are silent as to the situation where part of a State achieves its own independence.
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