An SCFF event will take place in Aberdeen on Friday 11th October at 6pm to discuss one of the contested and important issues in the Scottish independence referendum – what would happen to Scotland’s membership of the European Union (EU) in the event of a “Yes” vote for Scottish independence in the referendum in September 2014?
Unprecedented Situation – Legal Answer Unclear
The answers to this question are contested because such an event would be unprecedented in the history of the EU. In the past bits of a Member State of the EU have left the EU because the people of that bit wanted to leave the EU (Greenland as part of Denmark chose to leave the EU) and Member States have added new parts to their territory which have become part of the EU (East Germany was added to West Germany). However, a situation has never before occurred where a Member State of the EU has split up and all parts of that Member State want to remain part of the EU. This is the situation that will occur if the majority of the Scottish people vote “Yes” in next September’s referendum.
Some Argue that Both Scotland and rUK would need to apply for membership of the EU
Some have argued that if Scotland votes “Yes” in September 2014 all of the UK (Scotland and the rest of the UK – referred to here as rUK) will, at some point, cease to be a part of the EU and both Scotland and rUK would have to renegotiate their membership of the EU. It seems highly improbable, and clearly very unsatisfactory for citizens from other EU Member States based in any part of the current UK or for UK citizens based in other parts of the EU, that the membership of any part of the UK of the EU should be cancelled or suspended at the time of a “Yes” vote in the referendum. It is the clear intention of the Scottish Government not to formally become an independent State until a considerable period after the referendum. Surely the dissolution or suspension of Scottish (and rUK membership) of the EU could only take place on the date at which Scotland and rUK become independent States (probably some time in 2016). It is possible that other Member States of the EU might argue that both rUK and Scotland will cease to be members of the EU on the date of Scottish independence because each new entity has to negotiate new terms with the EU as new Member States. The mood music from Brussels makes this scenario very unlikely as there seems to be widespread recognition that at least rUK should have a right to continued membership of the EU.
Many Argue that only Scotland would have to apply for membership of the EU
Of course, many have argued that rUK will be recognised by the international community as the successor State to the UK and therefore will automatically retain its membership of the EU. This seems to be the most widely held view legally and politically. It is partly influenced by theories of public international law and has particular significance in relation to the United Nations because there only one part of the UK can succeed to permanent membership of the Security Council and it makes obvious sense for that to be rUK. Proponents of this argument suggest that Scotland will have to negotiate its membership of the EU. Some think that it will be possible for this to be done in the period after the independence referendum before Scotland becomes an independent State. For this to happen one imagines that the UK Government would have to permit the Scottish Government to negotiate alongside them with the Commission of the EU the terms of Scotland’s membership and agree an Accession Treaty for Scotland. In this scenario the standard terms and conditions of Scottish membership of the EU would be those offered to new members of the EU in accession negotiations. Apart from Turkey (who are potentially being offered less than full free movement for its citizens but are not being allowed any opt outs from the acquis) this standard package is the full EU acquis (ie all the normal EU law provisions). This would mean that Scotland would be offered a package where it would be expected to become a Member State using the Euro currency (once it meets the economic criteria under the EU Treaties that are a prerequisite of being a member of the Eurozone), being part of the Schengen agreement (ie no border controls with other EU Member States but border controls with rUK), accepting all legislation on criminal and civil justice co-operation, having no budget rebate and having no Protocol explaining how the EU Charter of Fundamental Rights operates in Scotland. The Scottish Government is likely to want to avoid having to become a member of the Euro as it has stated its preference for a currency union with rUK keeping the Pound. If Scotland seriously wants to retain the social union in the UK it will have to negotiate not to be part of the Schengen agreement and to maintain the common travel area (no borders) with rUK and Ireland. Otherwise it will be easy for Scots to fly to continental European destinations but become difficult to drive to England or to sail to Northern Ireland. Given that Scotland would be trying to negotiate a departure from what is normally on offer to States acceding to the EU there is a risk that its requests may be blocked by one or more EU Member States or by the European Parliament (unanimity among the Member States in the Council of the European Union is required for accepting an application for membership of the EU, as well as the approval of a majority of the component members of the European Parliament – see Article 49 of the Treaty on European Union (TEU)). Political agreement may eventually be forthcoming but the Scottish Government is likely to find it very difficult to achieve such agreement within the relatively short timescale it has given for the transitional period between the referendum in 2014 and full Scottish independence in 2016. This is particularly the case because the Accession of Scotland cannot take place, under Article 49 TEU, until a Treaty containing the details of the changes to the EU Treaties and the conditions of Scotland’s admission to the EU has been approved by all the Member States under their constitutional systems. The whole process could take several years. The Scottish Government would have some negotiating leverage because citizens of other EU States living, studying or working in Scotland would not like to lose their rights under EU law, eg to free University tuition, and because some EU fishermen would not like to lose the opportunity to fish in the Scottish exclusive economic zone, but some other Member States might be reluctant to accommodate Scotland because of their own concerns about separatist tendencies within their own borders (eg Spain and perhaps Belgium) or fears about Europe becoming even more a la carte (eg France).
Some Argue that neither Scotland nor rUK would need to apply for membership of the EU
It is, however, possible to argue that for the purposes of EU membership the UK will continue to be a Member State of the EU after the referendum until the date on which Scotland is formally constituted as an independent State and that from that date rUK and Scotland will both be successor States in the EU. The main provisions in the EU Treaties (the Treaty on European Union and the Treaty on the Functioning of the European Union) do not require any change to accommodate both Scotland and rUK as successor Member States in the EU. The dual successor State philosophy also means that Scotland, as well as rUK, would succeed to the current package of UK Treaty obligations with the EU and to the EU laws currently applicable in the UK. Thus Scotland would be a successor to the rights of the UK as a party to the Protocols on currency (No. 15), on Schengen and on the continued common travel area between the UK and Ireland (Nos. 19 and 20), on the area of freedom, security and justice (No. 20 – meaning, eg, that Scotland would not automatically be a party to the EU Succession Regulation), and on the application of the Charter of Fundamental Rights of the EU to Poland and to the UK (No. 30). If the Scottish Government maintains this position in the post referendum period it can argue that no EU Treaty changes are necessary and that the only political negotiations needed are with rUK and, possibly, other EU Member States if those negotiations fail, over what share of the UK EU rebate should be assigned to Scotland. Scotland as a successor State cannot share a member of the EU Commission, and judges in the General Court and in the Court of Justice of the EU with rUK. However, it can claim that as a Member State it is entitled to those things without the need for Treaty change. Scotland, at least in the medium term, would have to content itself with the current number of MEPs (6) rather than the larger number given to Member States with the same population as Scotland (eg Denmark – 13). The Scottish Government may decide that this is a small price to pay for arguing consistently that it is a successor State of the UK in the EU (along with rUK) and to try to convince other Member States that the current UK citizens who choose to become Scottish citizens should be allowed to continue with the rights they currently have in relation to the EU.
Paul Beaumont is Professor of EU and Private International Law at the University of Aberdeen