Scotland's EU membership
13th Aug 2014
- An independent Scotland would seek to join the European Union, but the two sides of the referendum campaign have disputed the route it would take.
- One option would see negotiations take place in the time between a yes vote and independence; the Scottish Government says because it would be negotiating from within a member state it could agree terms allowing it to secure membership from the first day of independence.
- The other option would mean applying to become a member using the same process currently used by new applicant states. It's difficult to predict how long this would take.
The Scottish government has said it will seek to be a member of the European Union after independence. The complexity of this process and the length of time it will take seems to depend on whether the country is treated under EU law as an existing member or an entirely new applicant for membership.
There's no explicit piece of legislation making clear how it could negotiate entry to the EU. Nor is there any precedent to the decision — Scotland would be the first country to have secured independence from an EU member state while wanting to remain a member itself. This uncertainty leaves legal scholars and other experts split over which approach is the more consistent with the EU's past decisions and other laws.
So what are the options for membership, and the reasoning behind them?
Article 48 — potentially the quicker and less disruptive option
Article 48 of the Lisbon Treaty allows existing member states to amend the treaties governing their relationship with the EU, subject to the approval of the European Council, European Commission, and representatives of the other member states.
An amendment allowing automatic membership for countries who've become independent from a member state could be introduced, according to the Scottish Government. That would give it eighteen months from from a yes vote in September to negotiate and put in place the changes before its planned date for full independence, on 24th March 2016.
It has said that it will negotiate on the basis of "continuity of effect" which it says would mean:
"a transition to independent membership that is based on the EU Treaty obligations and provisions that currently apply to Scotland under our present status as part of the UK, and without disruption to Scotland's current fully integrated standing within the legal, economic, institutional, political and social framework of the EU."
That continuity would allow Scotland to maintain the same 'opt-out' agreements which the UK currently holds. That would mean it could join the EU without having to adopt the Euro as its currency, and without having to join the "Schengen area" which allows passport-free travel between 22 EU member states and 4 other European countries. We've covered these issues in more depth in our spotlights on currency and passports in the case of independence.
Whether or not the various bodies of the EU are likely to view it as a continuing, rather than new, member is less clear.
Professor James Crawford and Professor Alan Boyle have said that historic cases of states separating, such as the breakup of the USSR, suggest that the rest of UK would be considered under international law as "the continuator" in the event of Scottish independence. In other words, all treaties that apply to the current UK would continue to apply to the rest of the UK, and not to Scotland.
The UK government has quoted both the President of the European Council, Herman Van Rompuy, and the former President of the European Commission, José Manuel Barroso, as saying that a country declaring independence from a member state would become a "third country" to which the treaties don't apply. This is also the most recent position of the EU Commission, and would mean they would have to apply for membership under the same provision — Article 49 - as other applicants who are considered to have no history of membership.
But some experts have questioned this interpretation. Professor Sionaidh Douglas-Scott has argued that EU laws could overrule international law, meaning the rest of the UK wouldn't be the only continuator. For instance, she argues that a change in Scotland's membership would mean taking away EU citizenship from some Scottish citizens - those who do not qualify as EU citizens by holding another nationality - and that would mean taking away rights such as the right to free movement. She argues that this would be tricky to justify under EU law. For this and other reasons she argues that the views of Barroso and other EU officials "overstate the case considerably, and are unworthy to be considered representative of an EU perspective."
Article 49 — the new state on the EU block
Article 49 permits any European country to become a member state, as long as it respects the EU's values and meets certain requirements. These include having a stable democracy and rule of law, freedom of trade, and other structures that allow it to integrate well with EU institutions.
Some have predicted that if an independent Scotland were required to take this route it would re-enter in 2019 at the earliest. But it's difficult to predict exactly how long the process would take as the steps towards filling the requirements vary by country. The process for current applicants has been delayed or suspended by issues ranging from problems with their laws on human rights (in the case of Bosnia and Herzegovina), to disagreements with other member states (in the case of the Former Yugoslav Republic of Macedonia).