Scotland, independence and the EU: the Barroso intervention

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  By Aidan O’Neill QC
 
The President of the European Commission, José Manuel Barroso, has responded to an invitation from the House of Lords Economic Affairs Committee for the European Commission to contribute to the committee’s inquiry into “The Economic Implications for the United Kingdom of Scottish Independence”.

Surprisingly perhaps, his response does not, however, deal with any economic issues should the 1707 Treaty of Union be dissolved and Scotland become an independent State, but rather with legal ones.

By Aidan O’Neill QC
 
The President of the European Commission, José Manuel Barroso, has responded to an invitation from the House of Lords Economic Affairs Committee for the European Commission to contribute to the committee’s inquiry into “The Economic Implications for the United Kingdom of Scottish Independence”.

Surprisingly perhaps, his response does not, however, deal with any economic issues should the 1707 Treaty of Union be dissolved and Scotland become an independent State, but rather with legal ones.

Mr. Barroso’s first degree is in law, and he undertook postgraduate studies in economics and in international relations.  It is to be expected that his views will be legally informed and clearly reasoned.  The relevant paragraphs of his letter to the House of Lords on the issue states as follows:

(1)  “The EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them.

(2)  If part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory.

(3)  In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.

(4)  Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU.

(5)  If the application is accepted by the Council acting unanimously, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails.

(6)  This agreement is subject to ratification by all Member States and the applicant state.”

While propositions (1), (4), (5), and (6) are undoubtedly correct, the claims made in statements (2) and (3) are perhaps more complex than Mr. Barroso’s brief account would indicate.

The EU Treaties have been concluded for an unlimited period – see Article 53 of the Treaty on the European Union (“TEU”).  Indeed, until the insertion of a new Article 50 TEU by the 2007 Lisbon Treaty, the Treaties contained no provisions for the secession or unilateral withdrawal of a Member State from the EU.  Article 50(3) TEU now provides that the Treaties shall cease to apply to a Member State from the date of entry into force of any withdrawal agreement; or failing which, two years from the date of notification of withdrawal has formally been given by the Member State to the European Council.

The only precedent for part of the territory of a Member State leaving the EU is the case of Greenland which in 1985, left the EU after negotiation and agreement among all the Member States resulting in a formal amendment of the Treaty.  So, such precedents as exist would indicate that an existing territory within the European Union has to be negotiated out of the EU, rather than for there to be any immediate automatic cessation of the applicability of EU law within that territory on its secession from a Member State.

Further, Article 52(1) TEU specifies that the Treaty applies to “the United Kingdom of Great Britain and Northern Ireland”. There is a respectable legal argument to be made that – given that Article 1 of the 1707 Articles of Union provides “that the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof, and for ever after, be united into One Kingdom by the Name of Great Britain” – the revocation of the British Union would mean not only independence for Scotland but also the dissolution of the United Kingdom of Great Britain and Northern Ireland.

If Barroso’s automaticity argument has any purchase, then it could be said that from a matter of a strict literalist reading of the Treaties – against the background of the constitutional history of the formation of the UK – a disunited Kingdom without Scotland would no longer be the Member State which originally signed up to the European Union and therefore the dissolution of the UK into separate States would result in none of the territory of the former United Kingdom remaining within the EU.

Normally in international relations, politics trumps law.  Not so in the European Union however where the Court of Justice of the European Union has long made it clear that it alone (and not the Commission or the Member States) is the fundamental guardian and interpreter of the European Treaties.  And the issue of whether an independent Scotland or the continuing UK remain members of the EU or have to reapply for membership affects not just states but individuals not least because, by virtue of Article 9 TEU, every national of a Member State is also an EU citizen.

The Grand Chamber CJEU decision in Rottmann v Bavaria shows that decisions concerning the continuing national status of Member State nationals fall within the ambit of EU law and the supervisory jurisdiction of the CJEU precisely because changes in individuals’ national status may impact upon their acquired EU law rights qua EU citizens.

Again, if the Barroso thesis is correct we may then be left with the paradoxical consequence that an independent Scotland would not be entitled to be accepted as a Member State of the EU, but all its (formerly British) nationals would continue to be EU citizens able to enjoy the protections and privileges conferred by EU law while their independent Government incurred none of the responsibilities.  That might turn out to be for Scots – in the words of Candide – “the best of all possible worlds” but it is not perhaps a result which, for example, Spanish fishermen suddenly deprived of access to the newly exclusive territorial fishing grounds of an independent Scotland outside the EU would relish.

But if the better thesis is that an independent Scotland would have to negotiate its way either in or out of the European Union, then it may be that any referendum on Scottish independence should indeed contain a second question to guide its Government on this point: do you want an independent Scotland to be in, or out, of the EU?

Reproduced courtesy of Aidan O’Neill QC and eutopia law