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Scottish Independence and EU Membership: Part II

Published on September 16, 2014        Author: 

Introduction

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…

Filed under: EJIL Analysis, European Union
 
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Scottish Independence and EU Membership: Part I

Published on September 10, 2014        Author: 

Introduction

As the campaigns for and against Scottish independence move into their final rounds of sparring before the vote on 18 September, the question of Scottish membership of the European Union (EU) sits (relatively) quietly in the background. And no wonder: a question which involves the interaction between the complexities of international, EU and domestic law, as well as the vagaries of international politics is a headache for which the average voter has little appetite, and nuanced discussion of which is unlikely to win many votes. Nonetheless, the question of Scottish EU membership is of considerable practical importance if a ‘Yes’ vote is returned and raises very interesting legal issues. (For previous posts on this blog raising some of those issues, see here, here and here).

Due to the complexity (and controversial nature) of the issues involved, my analysis will be split into two posts. This first post sets out the broad position of the campaigns, explores the relationship between international law and EU law, and considers whether there is any merit in the view that an independent Scotland would become a member of the EU automatically (the ‘automatic succession’ argument). It is argued that the automatic succession argument is unpersuasive even as a matter of EU law. The second post will consider the arguments concerning 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.

The position of those campaigning against Scottish independence is that if Scotland becomes independent, it would not be an EU member state, and would have to reapply to join, possibly languishing at the back of a queue of other applicant states.

The separatist position has been a somewhat movable feast. At one point, the Scottish Government suggested that an independent Scotland would automatically be a member of the EU and some eminent commentators, such as Aidan O’Neill QC, have also sought to defend that outcome (see here). However, the Scottish Government has now disavowed that position, and the White Paper recognises that EU membership would need to be negotiated after all (as does O’Neill, see: here). Nevertheless, it seeks to make the case that such negotiation would be seamless and therefore the risks of not being welcomed with open arms are small. Read the rest of this entry…

 
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