PhD Candidate at King’s College London
The referendum on Scottish Independence is due to take place on the 18th of September. One of the most politicized and contentious issues raised by this referendum is the question of how and whether Scotland would qualify for EU membership if it were to secede from the United Kingdom. The Scottish government has argued that a simple Treaty change would be sufficient, whereas the UK government has warned that the process would be long and complex. In this article, I shall attempt to give an overview of both positions.
Firstly it is important to note that no EU member state has ever had part of its territory secede, making this an unprecedented debate. This explains the lack of clarity surrounding the issue. However there is at least one certainty. Article 49 of the Treaty on the European Union (TEU) states that unanimous approval by the European Council is required to admit a new member. As every member state is represented in the Council, approval by every EU member state is required for Scotland to accede. This accession agreement would then have to be ratified by each member state. Therefore the cooperation of all the EU member states will definitely be required for Scotland to gain EU membership post-secession.
The Position of the UK Government
The UK government is of the opinion that once Scotland secedes it will have to apply for EU membership under the usual route contained in Article 49 TEU. This would require Scotland, once it is fully an independent state, to submit an application for consideration by the European Council, who require the assent of the European Commission and Parliament to allow accession. In considering this application the EU institutions will look at whether an independent Scotland meets certain criteria, called the Copenhagen Criteria. According to the Copenhagen Criteria, countries wishing to join the EU need to have: (1) stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; (2) a functioning market economy and the capacity to cope with competition and market forces in the EU and (3) the ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic and monetary union. It would also look at whether Scotland upholds the EU’s democratic values espoused in Article 2 TEU.This method of accession would take Scotland outside the EU before it could re-join, meaning there could be a lengthy period where an independent Scotland is not part of the EU.
The Position of the Scottish Government
The Scottish government has argued that it would be able to gain EU membership through a simple change to the Treaties. Article 48 TEU provides the member states with a mechanism for renegotiating the existing EU treaties. There are two revision processes: the ordinary revision process and the simplified revision process. However, only the ordinary revision process could be used to revise the treaties to allow for Scottish membership. This would require at least an intergovernmental conference where all the current member states would have to agree to Scotland’s accession and then ratify that agreement. By using this method, the Scottish Government hopes to provide continuity with its relationship with Europe by having this in place by the time secession takes place.
Unfortunately for the Scottish government, the use of the Article 48 TEU process seems very unlikely. The reasoning behind the Scottish government’s argument seems fairly weak. Their main argument is that the Article 49 process is inappropriate because EU law has already applied in Scotland, which is a distinct legal order to the rest of the UK, for over forty years. However there are several strong arguments in favour of the Article 49 route:
- Article 50(5) of the Treaty on the European Union: Article 50 TEU provides the procedure to be undertaken if a member state wishes to leave the EU. Paragraph 5 of that Article states that if a member state has left the EU and wishes to re-join, it will have to go through the Article 49 process. In my opinion, the content of this Article is the strongest argument against the ability of the Scottish government to use Article 48. A state that has withdrawn from the EU will also have had EU law applied to its territory for many years; this does not give it the right to bypass the Article 49 route.
- It is unclear how the Scottish government could ensure the use of the Article 48 procedure. Under Article 49 the consideration of membership is initiated by an application submitted by the prospective member, but under Article 48 a revision of the treaties would have to be initiated by a member state. It is possible that an agreement with the UK could be reached where the UK was obliged to initiate Article 48 proceedings for Scotland’s membership but depending on the UK to ‘sponsor’ its membership does not seem to be in the spirit of secession. There is also, of course, the possibility that the UK government would refuse to do this.
- Even if Scotland and the UK reached an agreement where the UK initiated Article 48 proceedings, all the other member states would have to agree to a change in the treaty and ratify in their own state. This may be politically problematic. Several EU states, including the Czech Republic, Ireland and Spain, have expressed the opinion that if Scotland becomes independent it will have to apply for membership. This may be particularly relevant in the case of Spain. The Spanish Prime Minister has made it very clear that if Scotland secedes from the UK it will be ‘outside the EU’ and have to reapply for membership. This firm position is most likely due to the current arguments in Spain concerning secession. The Spanish region of Catalonia has a strong separatist feeling which is not supported by the Spanish government. This has recently come to a head as Catalonia requested permission to hold an independence referendum in November this year but this proposal was roundly rejected by the Spanish Parliament. Given this situation, making the route to EU membership ‘too easy’ for Scotland would be unappealing to the Spanish government. It may veto the treaty amendment and force Scotland to use the Article 49 route.
In the event of independence, it seems unlikely that the Scottish government would be able to use Article 48 TEU to join the EU. This is not necessarily disastrous for Scotland, however. The idea that Scotland would need to ‘join a queue’ to get into the EU as suggested by some politicians is ridiculous. There is no queue for EU membership – Turkey initially applied for EU membership in 1987 and is yet to be admitted but 16 other states have since joined the Union. The UK government’s insistence that the negotiations would be long and complex also seem to be a product of fear mongering. Given that Scotland has been part of the EU for over forty years, negotiations need not be particularly protracted. However given the uniqueness of the situation, no one can be sure of the way things will proceed.
 See the Boyle and Crawford legal opinion for the UK Government https://www.gov.uk/government/publications/scotland-analysis-devolution-and-the-implications-of-scottish-independence
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