In my previous post (here), I addressed the reasons why international law and EU both arrive at the conclusion that an independent Scotland would not automatically succeed to EU membership. Given that it now seems to be accepted on all sides that membership of the EU would therefore need to be negotiated, much of the previous post can be considered a necessary background to the following discussion. In this post, I consider the correct legal basis in the European Treaties for negotiated EU membership, as well as some of the problems involved in the negotiations, the consequences if they fail, and how such issues might come to be considered by the Court of Justice.
Due to the complexity of the issues and the consequent length of this post, it is only appropriate to summarise my view from the outset. In theory, I consider that either Article 48 or Article 49 of the Treaty on European Union (TEU) could be utilised in order to facilitate EU membership for an independent Scotland. However, both routes involve significant difficulties, and it is likely that an Article 48 process would be the more problematic of the two, and could be blocked. In any case, it appears that the Scottish Government’s proposals for the timetable from a ‘Yes’ vote to independence day are wildly optimistic.
On balance, and contrary to the position in the Scottish Government’s White Paper, it may therefore be the case that Article 49 should be preferred by the Scottish Government, for the reasons I set out below. However, whichever process is used, if the date for independence day is immovable, then the possibility of the requisite membership steps remaining incomplete at that time is a nettle (or a thistle!) that must be grasped. In such a scenario, I envisage that EU law would be given continuity of effect, and that it would be possible or even likely that a case would reach the Court of Justice which would test this point. However, such a position would probably be an interim solution at best, and could still result, in the worst case scenario, in the EU rights and obligations of an independent Scotland, its citizens, and its companies, coming to an end. Read the rest of this entry…