Tomorrow, more than 4 millions of Scots will decide about Scottish independence on a referendum. The latest opinion polls are suggesting a very narrow result. In the latest poll made by Panelbase on September 12th the difference between the supporters and the opponents is just 1 percent – 47 % against, 46 % in favour, while 7 % of people is still undecided. A “yes” tomorrow will, however, represent just the beginning of the Scottish independence journey. As in every separation, the parties will need to convene on several issues. A separation from the UK will affect also Scotland’s relations with the EU. Would Scotland automatically become the 29th member state of the Union or will it need to enter in the queue as every other candidate State? As we are talking about the EU, there is no common opinion on this issue.
The supporters of Scottish independence claim, that the new state would be able to join the EU automatically, based on the amendment of the current Treaties and they invoke Article 48 of the Treaty of the EU (TEU). On the other hand, the independence opponents support the thesis that the new State would need to apply for membership and follow the procedure described in Article 49 of TEU.
SUPPORTERS vs. OPPONENTS
The independentists see the solution in the change of the already signed Treaties using the ordinary revision procedure ruled by article 48 of TEU. They claim that the change of the Treaties could be achieved already during the transition period that will follow the decision for independence during which, Scotland and the UK will need to define every detail of the separation. In this case, based on the supporters’ opinion, the new country would automatically join the EU on the day of the proclamation of independence.
The independence opponents and the UK’s government emphasize that an independent Scotland would need to apply for membership and follow the whole accession procedure described in Article 49 of TEU.
However, neither of the two procedures can’t assure Scotland membership in the EU. Both, the treaty changes and the accession of a new country, require consensus of all the Member States. The difference could be in the length of the procedures, as the ordinary revision procedure is seen as quicker than the accession procedure during which a “screening” of the legislation of the new country is checked to verify its compatibility with EU law. However, we could argue that this “screening” wouldn’t cause any problem to Scotland, as we could suppose that as part of the UK it will take over some (or even most) of the UK’s legislation that is already in line with EU law.
THE POSITION OF THE EU’S INSTITUTIONS
As regards the EU institutions, we could say that they tried not to comment on the consequences of a Scotland’s independence to its membership status. However, from some answers provided on several occasions we could suppose, that Brussels supports more the use of Article 49 of TEU.
Several parliamentary questions by MEPs were made in the past years and the different Commission’s answers guide us to the one provided by the then president of the Commission Romano Prodi from March 1st 2004:
“When a part of the territory of a Member State ceases to be a part of that state, e.g. because that territory becomes an independent state, the treaties will no longer apply to that territory. In other words, a newly independent region would, by the fact of its independence, become a third country with respect to the Union and the treaties would, from the day of its independence, not apply anymore on its territory.”
In the same answer president Prodi underlines that every country can apply for EU membership based on the provisions of Article 49 TEU.
A similar answer (this time regarding Catalonia) was given in December 2013 by the president of the European Council Herman Van Rompuy who stated that a new country, even if it arises from a current EU Member State, have to apply for membership under Article 49 of TEU. The answer is not applicable just to the Catalonia case but, as stated by the European Council in an answer to an MEP question, to all similar cases that could arise (Scotland included).
We need to add that the Commission has several times emphasized that it would be able to prepare a more detailed opinion on the consequences, that the creation of a new State on the territory of a Member State, would have on EU law only when a Member State would formally request such opinion, presenting a detailed scenario.
MEMBER YES, BUT WHEN?
In any case, Scotland wouldn’t become independent over night. Despite the result of the referendum it will remain part of the UK, and consequently of the EU, for some time. In this transitional period the EU institutions would need, irrespectively of a formal request of a Member State or not, to issue a clear statement explaining which path should Scotland use to become a member.
In either procedure, negotiations would be needed and their content (joining the Schengen and Euro area, cooperation in the field of justice, etc.) would be the same. Moreover, each of the procedures in the end need to reach a consensus of all the Member States. In my opinion it would be easier for Scotland to start the negotiations from scrap as the UK has several “concessions”. It seems very difficult that Member States would allow Scotland to maintain all of them.
In any case, we first need to see how the Scots will decide tomorrow. I don’t think that anybody is prepared to bet on tomorrow’s result. However, in the case of a “yes” win, we will be able to continue with this debate. If not we will just need to wait. Scotland is not the only one within the EU that seeks independence. But this is another story.
If you wish to follow the referendum developments check out the special BBC “Scotland Decides” section.