A Brexit could make it easier for Scotland to join the EU as an independent state

A Brexit could make it easier for Scotland to join the EU as an independent state

One of the key issues in the 2014 referendum on Scottish independence was the question of how an independent Scotland could join the EU and whether it would retain the same membership terms as the UK. Merijn Chamon and Guillaume Van der Loo revisit the issue in light of the UK’s upcoming referendum on EU membership. They argue that if the UK were to leave the EU, it could simplify the process for Scotland to retain its membership should the country opt to become independent.

In the run up to the 2014 referendum on Scottish independence, a number of posts (by Jo Murkens,Daniel Kanealy and ourselves) appeared on this blog in which the legal and political difficulties of assuring a smooth (re-)accession for Scotland into the European Union were highlighted.

The Scottish government’s proposal to rely on Article 48 TEU (the Treaty revision procedure) was found to be legally flawed and also politically uncertain. The procedure to allow a new state into the Union (Article 49 TFEU) was found to be the proper procedure but it is politically unattractive for a newly independent state, since it would be faced with a temporal paradox: namely, how to make sure that the outcomes of two, in principle, logically successive negotiations (on intra-UK independence and inter-EU accession) coincide perfectly. It was further far from clear whether Scotland (as a new EU Member State) would be entitled to keep the opt-outs applicable to the UK (including with respect to Schengen, the euro, Justice and Home Affairs cooperation, and the UK’s rebate).

Given the outcome of the referendum, these questions need not be resolved at the present time, but the upcoming referendum on the UK’s continued EU membership could open up a third way to EU membership for an independent Scotland. Interestingly, unlike the options discussed in the run up to the 2014 referendum, it would be both legally and politically more sound, allowing for a less cumbersome transition from an EU region within the UK to an independent state and EU Member State in its own right.

Scotland’s EU membership

Drawing from the previously cited articles, it should be recalled here that the problem for a Scottish accession under Article 48 TEU is that Scotland would not be a party to the EU Treaties where this is a prerequisite for being a Member of the EU. The problem under Article 49 TEU is that it cannot guarantee Scottish EU Membership taking effect on the same day as Scottish independence from the UK. In addition, Scotland would be a new Member State which, just like the Member States from the 2004 enlargement, would enter the EU with an obligation to participate in the entire acquis.

A Brexit could make it easier for Scotland to join the EU as an independent state

Image credit: First Minister of Scotland (CC-BY-SA-2.0)

Paradoxically, at first sight a Brexit could address all these difficulties. The gist of the reasoning would be as follows: if the UK as a whole votes to leave the EU, while in Scotland a majority votes to stay, the procedure of Article 50 TEU could be used to allow the UK (minus Scotland) to withdraw from the EU, while Scotland would be entitled to pursue the UK’s EU Membership. Both issues would of course have to be negotiated by the (still unified) UK government. While the Article 50 TEU solution would not do away with all legal and political obstacles, it would be less uncertain than the options of going through Article 48 or 49 TEU.

Expanding this argument, it is clear that a first precondition is that a ‘fault line’ within the UK would manifest itself on 23 June following the referendum. In this regard, Scottish First Minister Nicola Sturgeonremarked that ‘a vote to leave the European Union against Scotland’s wishes would “almost certainly” trigger another independence referendum.’ Supposing then that the second referendum on Scottish independence would result in a vote for independence, the necessary preconditions for using Article 50 TEU as a backdoor to EU membership would be met.

Although Article 50 TEU only prescribes the procedure for a Member State (e.g. the UK) to leave the EU, this provision can also serve to govern the withdrawal of only a part of a state (e.g. England, Wales and Northern-Ireland) and as a legal basis to keep an independent Scotland in the EU in the context of a Brexit – under the condition that there is a political consensus for this among the three parties involved (i.e. the EU, Scotland and the UK minus Scotland). The negotiations foreseen in Article 50 TEU would then have two main aims: defining the EU’s relationship with the UK (minus Scotland) post-Brexit and adapting the terms of the UK’s EU membership to Scotland (i.e. adjusting them to Scotland’s size).

While under international law, Scotland would become a new legal entity, in the EU legal order it could remain being regarded as the Member State that joined in 1973. At least one remaining difficulty (under international law) would be the succession of obligations in relation to the many mixed agreements concluded between the EU and the Member States (on the one side) and third countries (on the other side). For each of these treaties, an agreement should be reached with each third state concerned on the proper identity of its ‘UK’ counterparty. Still, from the perspective of the EU legal order this solution would allow Scotland to keep the UK’s opt-outs (subject to a possible renegotiation in the Article 50 TEU procedure) and it would allow for a smooth transition between being part of the EU as a region of a Member State and as a Member State in its own right.

After all, Article 50 TEU allows for the postponement of the actual withdrawal (as long as necessary, given the need to first conclude an intra-UK agreement on Scottish independence) if the European Council agrees so unanimously. This unanimity requirement should not be too problematic, since Scottish EU membership would be linked to the UK’s withdrawal. Even if some Member States might have (domestic) reasons to hinder Scottish EU membership, it is in everyone’s interest to have the UK withdraw in an orderly fashion. Forging a package deal between the two issues could then be Scotland’s easiest road to EU membership.

Note: this article originally appeared on EUROPP blog.

About the authors

Merijn Chamon – Ghent University
Merijn Chamon is post-doctoral Assistant in the Ghent European Law Institute of the University of Ghent (Jean Monnet Centre of Excellence). He is especially interested in the broader realm of EU institutional and constitutional law.

 

Guillaume Van der Loo – Ghent University / Centre for European Policy Studies (CEPS)
Guillaume Van der Loo is post-doctoral researcher for the Flanders Research Fund (FWO) in the Ghent European Law Institute of the University of Ghent (Jean Monnet Centre of Excellence) and a researcher at the Centre for European Policy Studies (CEPS). His research interests are the EU trade policy and the Union’s proximity relations.

Print Friendly

6 Comments

  1. Ewan Sutherland March 18, 2016 at 2:10 pm - Reply

    I think the authors have missed the purpose of Art. 50 and an obvious alternative. The sole aim of Art.50 is create a path to leave the EU, not to renegotiate the treaties or pull rabbits from hats. At the end of the process, after two years or, by unanimous agreement, some longer period, the treaties would no long apply to the member state in question.

    There are two relevant precedents for what the authors want to achieve, namely Greenland and the neuen Bundesländer (the former DDR). Admittedly the latter is a reversal of the process.

    Should part of the United Kingdom wish to be in the EU and part to leave, then this can be resolved domestically, with the treaties tidied up thereafter (e.g,, numbers of MEPs and QMV). Thus, if England wished to leave the EU and the rest of the UK to remain, then the Kingdom of England need only leave the United Kingdom of Great Britain and Northern Ireland to have the necessary effect.

    Thus, were the matter to be taken to the Court of Justice of the European Union, it would be likely to hold that the purpose of Art 50 was not to cleave member states but to permit them to leave. It would also be able to point to the alternative that the member state might partition itself, with part remaining in the EU and part leaving.

    The authors also fail to consider the practical question of whether Scotland could become an independent country and to create the various institutions needed to enforce the treaties and the directives before the two year time period had elapsed. This would seem unlikely, even assuming that Westminster and Whitehall were not being obstructive.

    An effect of Scotland being in the EU and England being out would be to make the Solway-Tweed border an external border of the EU with all that implies in terms of trade and immigration inspections and controls.

  2. James March 17, 2016 at 11:14 pm - Reply

    This is wishful thinking. Scotland does not meet several of the key Maastricht criteria and has almost no chance of correcting this in time for a hypothetical Brexit.

    Scotland has no independent central bank or currency, and no foreign exchange reserves. It has a deficit much bigger than 3% of GDP and debt greater than 60% GDP. This is before we consider the possibility of other member states with fractious regional relationships like Spain (re Catalonia) blocking Scotland from doing this.

    It will never happen.

  3. Harry March 17, 2016 at 12:24 pm - Reply

    Why would a Unionist government in Westminster allow this? The UK government would have to approve a new Scottish referendum, which it would reject.

    • Andrew McCann March 17, 2016 at 10:06 pm - Reply

      Spot on! Westminster is the sovereign legal authority in this country, not Holyrood. Scotland opted to remain part of the UK in the full knowledge that a vote on the EU was in the pipeline. Westminster will simply not permit the constitutional integrity of the UK to be held hostage by the SNP – whatever propaganda some may believe.

      • xv March 19, 2016 at 1:38 am - Reply

        Then they would make a unilateral declaration of independence. People in Scotland are fed up with being governed by Tories, which very few people voted for. If England pushes hard enough, it will force the issue and it may well end up being extremely messy, particularly with the Good Friday Agreement in Northern Ireland.

        • Barry March 19, 2016 at 12:49 pm - Reply

          More Scots living in England wanted independence than Scots living in Scotland, it was more a case of get rid than wanting to go. People in England are fed up with being governed by the tories but they fixed the constituencies so that 30 % of the entire vote gave the a majority.

Leave A Comment

Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported
This work by British Politics and Policy at LSE is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported.