Would An Independent Scotland Convey To Reapply To Bring Together The Eu?

Professor Steve Peers, University of Essex

There has been extensive discussion, during the electrical current crusade on the plebiscite on Scottish independence, on the legal issues relating to an independent Scotland's membership of the European Union. Would an independent Scotland automatically endure a fellow member of the EU? Would the Treaties receive got to endure renegotiated, with Scotland equally a Member State participating fully? Or would Scotland receive got to apply to 'rejoin' the European Union equally a non Member State? Would an independent Scotland retain the UK’s electrical current opt-outs from the unmarried currency too Justice too Home Affairs (JHA) matters?

I receive got looked at these issues before, equally job of a longer analysis of the legal issues arising from the European Union Treaty amendment process, published inward the Yearbook of European Law. However, at in i lawsuit that the number has arisen inward practice, it's a practiced fourth dimension to revisit the topic.

General points

First of all, equally a thing of (non-legal) principle, it's clear what the response ought to be. If Scottish independence is supported yesteryear a bulk of Scottish votes, then, given that the legitimacy of the vote is accepted yesteryear the remainder of the UK, Scotland ought to rest an European Union Member State with the same opt-outs that the UK at in i lawsuit has. Our views on the desirability of independence (for the record, I would endure lamentable to run across Scotland larn out the UK) should non influence our interpretation of the legal position, or our recognition of the democratic legitimacy of the process. But nor tin nosotros assume that the legal seat is aligned with what it ought to be.

Secondly, i aspect of the debate is worth noting: it seems to endure taken for granted that Scotland ought to rest an European Union Member State afterward independence. From the perspective of the Eurosceptic Deep South of the UK, this is surprising. There are, of course, some Eurosceptics inward Scotland: the Shetland Islands too Western Isles voted against the Common Market inward 1975. But polls present 2-1 back upwards for remaining inward the EU, thus it doesn't seem to endure an issue. Perhaps Scots just desire to brand certain that afterward separation from England, they would soundless receive got something to whinge about.

This raises a farther interesting scenario: what if Scotland votes against independence this year, but the UK equally a whole votes to larn out the European Union inward a few years' time? Could back upwards for independence too thus increase, given the link with the to a greater extent than pop (in Scotland) illustration for European Union membership?

Finally, it's worth noting that Scottish independence would redress i 'reverse discrimination' number inward European Union law, too exacerbate some other i - assuming that both Scotland too the remaining UK were both European Union Member States. It would terminate the anomaly yesteryear which students from other Member U.S. receive got the same generous handling equally regards tuition fees inward Scotland equally Scottish students, piece students from the remainder of the UK do not. This mightiness good heighten questions virtually the affordability of this policy.

And it would do a novel road for British citizens with third-country national identify unit of measurement members to avoid the increasingly obnoxious constraints placed yesteryear British immigration police describe upon identify unit of measurement reunion with their loved ones. Scottish politicians receive got talked virtually increasing immigration to Scotland; the combination of harsh immigration laws inward the remaining UK too the application of European Union gratuitous displace police describe would hateful that they would larn their wish.

The legal issues

Would it endure possible for an independent Scotland simply to drib dead an European Union Member State without farther ado, simply yesteryear virtue of its independence? The analogy hither would endure with Algeria, which technically remained a job of French Republic (as a thing of European Union law) until the Treaties were amended to grab upwards with reality inward 1993. However, at that topographic point is a earth of departure betwixt a tertiary province which is no longer job of a a Member State too no longer wishes to rest job of the EU, too a State which, having been job of a Member State, wishes to succeed to that Member State's membership of the EU.

The starting indicate is that the European Union Treaties (unlike the founding treaties of some other international organisations) listing the Member U.S. of the EU: run across peculiarly Article 52 TEU, too the other provisions referred to inward my Yearbook article. It must follow that to alter the listing of Member U.S. a Treaty amendment is needed, fifty-fifty where job of an existing Member State has seceded. It is non sufficient for the Member U.S. to concur informally with themselves to this end, for the Court of Justice of the European Union (CJEU) has ruled that the Treaty tin only endure amended yesteryear using the formal procedures provided for to this terminate (Case 43/75 Defrenne II).

So which Treaty Article would apply to those amendments? Article 48 TEU provides for the Treaties to endure amended yesteryear unanimous consent of the Member States, piece Article 49 TEU provides for a novel Member State to bring together yesteryear way of an accession treaty negotiated betwixt the existing Member U.S. too the novel Member State, too and thus ratified yesteryear all of them. The telephone substitution departure betwixt the 2 procedures from an independent Scotland's indicate of thought (there are other differences, but let's larn out them aside for now) is that it would endure inward a stronger seat equally a would-be Member State (Article 48) than equally a non-Member State (Article 49). So this is, non surprisingly, the thought of the Scottish government.

However, the job of Article 48 has to endure rejected. The basic legal job is that only Member U.S. tin endure political party to a Treaty amendment pursuant to Article 48, whereas Scotland would not be a Member State, since it would non endure listed inward Article 52. If Scotland were a Member State already, recourse to Article 48 to meliorate the Treaties but to confirm that fact would non endure necessary. It cannot simply endure asserted that the listing of the United Kingdom of Great Britain too Northern Ireland of Britain too Northern Republic of Ireland equally a Member State inward Article 52 implicitly covers Scotland also, afterward independence, since the whole purpose of belongings an independence plebiscite is exactly to drib dead a split upwards State. As others receive got pointed out: afterward a divorce, you're single.

Sir David Edward has argued that the drafters of the Treaties did non retrieve that a percentage of a Member State which voted to secede from an existing Member State would receive got to apply equally a novel Member State. There is no prove of what the Treaty drafters idea of this number (if they idea virtually it at all), but given that some Member U.S. confront secessionist movements or fifty-fifty (in the illustration of Cyprus) breakaway self-declared States, it's hard to believe that all Treaty drafters took such a view.

Also, it has been argued that depriving Scots of European Union citizenship would endure a breach of the citizenship provisions of the Treaties, since they would lose that condition without their consent. But this begs the question: for the reasons I laid out here, a vote for an independent Scotland would be a vote to larn out the EU. By the same token, the foundation of the European Union on the principles of republic (Article 2 TEU) is non equally such relevant, since the 2nd judgement of Article 2 states that these principles are common to the Member States. The same goes for the regulation of sincere cooperation laid out inward Article 4(3) TEU. This declaration essentially boils downwardly to: an independent Scotland would rest a Member State, because it is a Member State. It's exclusively circular.

The Scottish authorities seeks to circumvent this chicken-and-egg job yesteryear stating that the electrical current Member U.S. (ie the 28 Member U.S. not including Scotland) could meliorate the Treaties yesteryear way of Article 48 inward the 18-month menstruation earlier Scottish independence took effect, inward club to supply for immediate Scottish European Union membership upon independence day. It's non quite clear why, equally a thing of politics, the other Member U.S. would want to do Scotland this enormous favour. Anyway, equally a thing of law, they couldn't do it: equally Professor Kenneth Armstrong has pointed out, Article 49 is land the lex specialis provision regarding the add-on of novel countries to the listing of Member U.S. laid out inward Article 52. However, it would endure possible to job Article 48 to amend Article 49 on this point, at the same fourth dimension equally providing for novel rules on Scottish membership. This seems an unlikely scenario, however, since it would encourage secessionist movements inward other Member States, fifty-fifty if the amendment to Article 49 were limited to the illustration of Scotland.

In fact, inward my view, Article 49 arguably has to endure used in conjunction with Article 48, since any Treaty amendment which gives a permanent opt-out for a novel Member State from significant EU policies goes beyond what tin endure addressed inward an accession treaty (see my Yearbook article for elaboration), too presumably Scotland would desire to proceed the UK's electrical current opt-outs. On the other hand, it mightiness reasonably endure argued that an exception to the latter dominion mightiness endure made here, since the legal seat equally regards the territorial orbit of those opt-outs would non actually endure changing.

Having said that, I am non convinced that the job of Article 49 necessarily would endure that hard inward practice. In principle, it should endure possible to describe upwards a really curt accession treaty quite quickly, given that Scotland is already applying European Union police describe yesteryear virtue of its integration into the United Kingdom. There would be a technical job negotiating with a State which does non yet exist, but at that topographic point could endure informal talks during the menstruation leading upwards to independence, with the accession treaty signed on the twenty-four sixty minutes menstruation of independence. It would arguably endure possible (as Professor Armstrong has pointed out) to apply the accession treaty provisionally, pending total ratification, or retroactively if necessary.

An choice road is to concur a really far-reaching association understanding betwixt the European Union too Scotland to ensure that European Union police describe soundless applies to Scotland inward the interim menstruation earlier the accession treaty tin endure ratified or (if bespeak be) negotiated. This treaty could inward plow endure applied provisionally from the appointment of independence (there are many precedents for the provisional application of treaties betwixt the European Union too tertiary States, too Article 218 TFEU expressly provides for this possibility).

This potentially uncomplicated legal physical care for could, however, endure complicated yesteryear purely political problems, if i or to a greater extent than Member U.S. (and it would only convey one) wished to tiresome downwardly the physical care for for whatever reason. It cannot simply endure assumed at this phase that this would (or would not) necessarily happen. While Sir David Edward has argued that at that topographic point would endure an obligation to negotiate inward practiced faith inward the lawsuit of a Scottish 'yes' vote, it is hard to detect a provision inward the Treaties which supports that proposition.

So, the bottom job is that when Commission President Barroso too Vice-President Reding debate that Scottish membership of the European Union would entail (a) an accession treaty too (b) endure lengthy too difficult, they are clearly correct on the outset point, but wildly speculating on the second.

Barnard & Peers: chapter 2 

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