2 Becoming an EU Member State
The route to membership: accession
or amendment?
14. The accession route for a country
seeking to join the European Union is via Article 49 of the Treaty
on European Union. This is the only article in the EU Treaties
which provides a specific procedure for a country to become a
member of the European Union.[14]
However, this is not the preferred route of the Scottish Government,
which has stated that:
Article 49 of the Treaty on European
Union provides the legal basis, and defines the procedure, for
a conventional enlargement where the candidate country is seeking
membership from outside the EU. As Scotland joined the EU in 1973
this is not the starting position from which the Scottish Government
will be pursuing independent EU membership. Article 49 does not
appear to be the appropriate legal base on which to facilitate
Scotland's transition to full EU membership.[15]
Instead, the Scottish Government is
seeking a "seamless transition" to membership of the
EU through Article 48 which provides for the Treaties to be amended.[16]
15. At the most basic level, Scotland
cannot be recognised as a member of the European Union because
it is not listed in the Treaties as a Member State. In the Scottish
Government's view, the Article 48 process can be used to revise
the Treaties to include a separate Scotland. They believe the
advantage of this process is that, should Scots vote in favour
of separation, it can begin immediately after the referendum and,
the Scottish Government argues, be concluded within 18 months,
before the formal date which it has set for separation, 24 March
2016. As in the conventional route of accession under Article
49, negotiations and ratification of the terms of Scotland's membership
would still be required. The Scottish Government has said that
its approach to negotiations would be based on the Treaty obligations
and provisions that currently apply to Scotland[17]
but it is by no means certain that a separate Scotland would receive
the range of opt-outs it currently enjoys by being part of the
UK - every detail could be subject to negotiation (we discuss
the potential terms of Scotland's membership in the following
chapter).
16. One reason why the Scottish Government
favours the Article 48 process is that application for membership
of the EU via Article 49 would cause a gap in Scotland's presence
within the EU. Professor Kenneth Armstrong, Director of the Centre
for European Legal Studies at the University of Cambridge, explained:
"it could carry out all the background negotiations and all
the rest of it beforehand; it could have substantially done the
deal, but it could only formally trigger the Article 49 process
once it was an independent state."[18]
Even if preliminary negotiations were completed before separation,
the time required for formal sign-off on the terms of membership
and subsequent ratification process would still mean a gap in
membership and the legal and economic problems that would ensue.
17. An interruption in the application
of the EU Treaties would have serious implications for people
of Scotland. As Professor Sir David Edward, a former judge at
the European Court of Justice, points out:
The logical consequence in law would
be that, from that moment, the acquis communautaire would
no longer, as such, be part of the law of the separating State.
[
] Erasmus students studying there would become 'foreign
students' without rights. Migrant workers would lose their rights
under EU law to social security. And the whole land and sea territory
of the separating State would cease to be within the jurisdiction
of the EU. (In the case of Scotland, which probably has the largest
sea area in the EU, that is an important security consideration
quite apart from other considerations.)[19]
Other serious issues caused by a gap
in EU Membership would include interruption in funding from the
Common Agricultural Policy. The Foreign and Commonwealth Office
(FCO) expect that in the event of an exit from the EU, funding
from the CAP would cease and any continuation of existing levels
of support to Scottish farmers would require funding from a Scottish
national budget of an estimated 550-600 million per
year based on 2011 prices (though during this period Scotland
would also not be making any contribution to the EU budget).[20]
DISAGREEMENT
18. Experts are divided on whether Article
48 can be used to increase the membership of the European Union
as the Scottish Government suggests. Jean-Claude Piris, former
Legal Counsel of the European Council and Director General of
the Legal Service of the EU Council, argues that:
it would not be legally correct
to try and use Article 48 of the Treaty on European Union for
the admission of Scotland as a member of the European Union. Only
Article 49 of the same Treaty would provide for a suitable legal
route.[21]
Professor Armstrong told us that, because
its purpose is as a means to renegotiate the Treaties between
existing Member States, "straightforwardly and legally it
is implausible to use Article 48".[22]
In February 2014, Jose Manuel Barroso, President of the European
Commission, stated that "in the case there is a new country,
a new state, coming out of a current Member State it will have
to apply".[23]
19. Graham Avery, Honorary Director
General of the European Commission, contends that, in making a
decision about the process of Scotland gaining membership, EU
leaders would take account of the implications of requiring Scotland
to apply as an external state. He argues that political and practical
considerations would cause a solution to be found because Scotland
being outside the EU would not be in the interests of the EU or
its Member States, particularly the UK:
The scenario of an independent Scotland
outside the EU and not applying EU rules would be a legal nightmare,
create social and economic difficulties for EU citizens, and deprive
the EU of benefits of Scotland's membership (its budgetary contribution,
fisheries resources etc.)[24]
The Scottish Government agrees with
Graham Avery that the EU would find a solution, as Fiona Hyslop
MSP, Cabinet Secretary for Culture and External Affairs, told
the Scottish Parliament's European and External Affairs Committee
"where there is a political will, there will be a way. The
EU is a past master at dealing with unprecedented situations."[25]
20. In Professor Sir David Edward's
view, Article 48 can be used to provide for a separate Scotland
becoming a member of the European Union.[26]
Mr Avery points out that negotiations concerning a separate Scotland's
membership could begin after the referendum and therefore Scotland
would not at that time be a new state (and therefore Article 49
need not apply). Sir David Edward also argues that, because Scotland
is already compliant with the acquis communautaire (the
body of EU law)[27] a
protracted accession process with detailed scrutiny of all 35
Chapters of the EU's acquis would not be necessary. However,
as Professor Armstrong reminded us, Scotland is not exercising
the same competencies under devolution as it would be exercising
were it to become a separate state:
Therefore EU Member States will
have to be satisfied that they understand how an independent Scotland
would institutionally and politically manage [
] foreign
policy and economic policy. The accession procedure under Article
49 is there to verify how an independent state would exercise
its responsibilities under the treaties.[28]
THE ARTICLE 48 PROCESS
21. The Article 48 treaty revision process
which provides, among other things, for a 'convention' to be convened
including national Governments, national Parliaments and the European
institutions, can only be instigated by a Member State, the European
Commission or the European Parliament and the proposal must be
agreed by the other Member States.[29]
In the event of separation, the Scottish Government would depend
on the United Kingdom to open up the treaty revision process and
initiate the negotiations on Scotland's behalf.[30]
The Article 48 process would therefore be entirely out of the
hands of the Scottish Government.[31]
22. While the UK Government could be
expected to act in good faith, it is hard to believe that the
UK Government would put forward Treaty amendments on areas that
would adversely affect citizens of a continuing UK - it is unlikely,
for example, that the UK Government would want to open up discussions
on the UK rebate or Scottish Government plans to discriminate
against UK students over tuition fees. As Aidan O'Neill QC explained
to the European and External Relations Committee of the Scottish
Parliament:
How can one expect the United Kingdom
Government to say in pre-negotiations, "We would like you,
on behalf of Scotland, to allow a treaty amendment that will in
effect discriminate against all the other people we happen to
represent in the rest of the United Kingdom"? That is not
going to happen. There are therefore clear tensions around the
suggestion of going down the route of Article 48, because there
are competing interests of what are potentially two different
Member States.[32]
23. Rt Hon David Lidington made it very
clear that the UK was not in favour of the Article 48 route: "I
think it is utterly implausible, and we do not think that is the
purpose of Article 48", "our view is that Article 49
is the right [process]".[33]
24. Ultimately, as the Scottish Government
itself recognises, it is up to the organs of the EU and the Member
States to decide the most appropriate procedure under which a
separate Scotland would become a member of the European Union.
[34] This process
of deciding the procedure is itself completely new and will not
necessarily be a speedy one. Indeed, because of the precedent
that might be created, it may well be approached cautiously and
require wide consultation and unanimity. If Article 48 were chosen
and there were doubts about whether it was the correct legal base
to effect Scottish membership, then the legitimacy of the process,
or if concluded, the legitimacy of Scotland's membership of the
EU, could be challenged through the European Court of Justice.[35]
Professor Armstrong writes that, in the Court's eyes, it is not
enough that a Member State may prefer one legal basis to another,
but "rather there must be a genuine and objective connection
between the purpose of the legal basis and that of the act adopted."[36]
As Courts tend not to deal in hypothetical situations this issue
cannot be brought before the Court before the referendum and thereafter
only if the vote were in favour of separation. Any challenge would
significantly impact on the timetable for membership. In May,
Fiona Hyslop MSP confirmed that legal advice on a separate Scotland's
membership of the EU had been sought and received, but, despite
repeated requests the Scottish Government has refused to reveal
its contents.[37]
25. In the event of separation, Scotland's
future membership of the European Union, on appropriate terms,
would be in the national interests of the UK. Furthermore, we
have heard no evidence that any other Member State would regard
it as contrary to their national interest, subject to acceptable
terms.
26. The Scottish Government's preferred
route to becoming a member of the EU is through Treaty amendment
under Article 48. Under this process the Scottish Government would
depend on the UK Government instigating negotiations on Scotland's
behalf. Not only has the UK Government described the prospect
of using Article 48 as "utterly implausible" but, in
the unlikely event that it is used, the UK Government could not
be expected to raise issues that would be to the detriment of
the citizens of England, Wales and Northern Ireland. Key objectives
identified made by the Scottish Government in its White Paper
would not, therefore, be realised.
27. Under
the Article 49 process Scotland would have to be outside the EU
to apply for membership. For this reason, the Scottish Government
favours Treaty amendment under Article 48 but it is unclear whether
this is permissible under EU law or acceptable to Member States.
There is therefore every likelihood that, in event of a Yes vote,
if the Scottish Government continues to insist on an independence
date of 24 March 2016 Scotland will temporarily be outside of
the European Union - with significant implications for the Scottish
people. However, we can find no evidence that the Scottish Government
has communicated this risk to the people of Scotland. The Scottish
Government should publish the legal advice it has received on
a separate Scotland's membership of the European Union as a matter
of urgency.
Timetable
28. In the event of a vote in favour
of separation, the Scottish Government aims to achieve membership
of the European Union within 18 months. This is the period between
the Referendum on 18 September 2014 and the proposed date for
independence, 24 March 2016. The deadline of 24 March 2016 is
one of the Scottish Government's own choosing; it would allow
the elections to the Scottish Parliament, scheduled for 5 May
2016, to be the first for the new country. No other country wishing
to become a Member State of the European Union has tried to dictate
the timetable of its membership in such bold terms.
PRESSURES ON THE TIMETABLE
29. The 18-month timetable assumes many
things. First, that it would be accepted that Scotland could seek
membership through the treaty amendment process under Article
48 which, as we outlined above, is highly unlikely. If accepted,
however, the Article 48 process is still not a route to fast-tracked
membership, negotiations would still have to take place, and ratification
would still be required.[38]
The ratification of Austria, Sweden and Finland's membership took
six months, after the conclusion of the negotiations and revision
process, and only 12 Member States were involved in that process.
Following the completion of the processes of negotiation, ratification
of Scotland's membership would need be undertaken by all 28 Member
States; although they would do it simultaneously (under their
individual constitutional processes), the risk of delay is much
greater than it was in the early 1990s and the timetable proposed
by the Scottish Government should, but does not, take account
of that.
30. There are two revision processes
under Article 48, a 'simplified revision process' and an 'ordinary
revision process'. An amendment to the treaty such as that sought
by the Scottish Government would fall under the ordinary revision
process which Rt Hon David Lidington described to us as being
very long and drawn-out.[39]
As mentioned above, a small amendment under the simplified revision
process (a quicker process than the ordinary revision process)
which involved little negotiation took close to 18 months to be
agreed.[40] There is
no guarantee that an Article 48 process is any quicker than accession
under Article 49. Professor Armstrong told us that, "there
is this erroneous belief that [Article 48] would somehow be quicker.
I do not think it would be."[41]
31. As well as being susceptible to
legal challenge, which would cause delay and uncertainty, opening
up a treaty revision process through Article 48 risks the matter
of Scotland joining the EU as a Member State becoming bogged down
in matters relating to the UK, such as efforts to reopen the size,
or very existence, of the UK rebate, or entirely unrelated attempts
to revise the Treaties.[42]
For example, Professor Armstrong argues that:
UK acquiescence in a Scottish request
for a revision to the treaties under Article 48 TEU creates a
very significant risk of issue-linkage between the constitutional
position of Scotland in the EU and that of the UK in the EU that
could cause significant delay and damage to the negotiation process.
If that were to occur there is every reason to believe that, at
best, the negotiating process at EU level would be lengthened,
and at worst, the process could become intractable leading to
failure.[43]
If opening up of the treaty revision
process results in more wide-ranging amendment to the Treaties,
there is a heightened risk that ratification of the resulting
Treaty might trigger a referendum in a Member State, risking further
delay, if not failure.
32. We consider the key aspects of negotiations
in the following chapter but the second point worth consideration
when discussing the timetable is the considerable challenge of
trying to run two separate sets of negotiations simultaneously
- on the terms of Scotland's separation from the UK and on its
membership of the EU. A number of areas of negotiation on Scotland's
membership of the EU will depend on the outcome of separate negotiations
between Scotland and the rest of the United Kingdom. Breaking
up a 307-year old union would not be straightforward. Professor
Adam Tomkins, John Millar Chair of Public Law, University of Glasgow,
told us that the idea that negotiations for separation alone could
be concluded within 18 months was ludicrous:
It is completely unrealistic. It
seems to me to have been set for purely party political reasons.
The reason why the SNP want independence day to occur in March
2016 is that they want it to occur while they still have a majority
in Holyrood.[44]
35. Negotiations with the EU on whether
Scotland should be permitted to opt out of Schengen, for example,
could not take place until the UK, Ireland and Scotland agreed
whether, and on what terms, Scotland might join the Common Travel
Area as a separate country. Similarly, negotiations with the EU
on economic issues, including membership of the Eurozone, could
not take place until the currency arrangements of a separate Scotland
were clear. It is also presently unclear whether the negotiations
would be conducted on the basis that nothing is decided until
everything is decided. Such an arrangement, which weakens the
Scottish Government's negotiating position because of its self-imposed
timetable, is likely to itself be the subject of negotiations
and thus delay.
36. The Scottish Government also appears
to underestimate the complexity of the negotiations, as Jim Currie,
a former Director General of the European Commission, told the
Scottish Parliament's European and External Relations Committee:
The terms of an independent Scotland's
membership would not simply involve a seamless move into the EU.
Tough negotiations would revolve around a number of things and
specifically the opt-outs that the UK has [
] I think there
will be tough negotiations around these things. Other Member States
will have the right to challenge the position and ensure that
the conditions under which Scotland would become a full Member
State of the EU are fully negotiated.[45]
37. Finally, the 18-month period the
Scottish Government is allowing for negotiations on separation
from the UK and membership of the European Union includes a General
Election in the UK and the appointment of a new European Commission.
The imminence of the General Election, which by the referendum
will be less than eight months away, is likely to considerably
inhibit the UK negotiators since parties competing for the votes
of the citizens of England, Wales and Northern Ireland are unlikely
to be focused on the needs of Scotland or competing as to which
can be most generous to Scotland. The prospects for speedy progress,
even for parts of a final deal, are not good.
38. Even with no distractions it would
be highly unlikely for Scottish membership to be agreed and ratified
within an 18-month period,[46]
but, given the number of challenges to overcome, we do not believe
that the process could be concluded by 24 March 2016. It is worth
noting, as Graham Avery points out, that with regard to the variability
of the date of separation, "it is not hugely important to
other Member States."[47]
39. It is misleading for the Scottish
Government to claim that on 24 March 2016 Scotland could be both
a separate state and a Member State of the European Union. There
are a number of clear risks to the Scottish Government's strategy
to gain membership of the EU, all of which are overlooked in the
White Paper, and which make the 18-month timetable unbelievable.
The Scottish Government's attitude to becoming a member of the
EU appears based on the sentiment, as articulated by Fiona Hyslop
MSP, that "where there's a political will, there will be
a way".[48]
The Scottish Government has provided no proof that the will exists
across Europe for Scotland's membership of the EU to be fast-tracked
with a timetable of Scotland's choosing, nor can it be certain
that its chosen way of achieving such a goal is legitimate or
would be accepted by all Member States. To date, not a single
Member State has indicated its support for the Article 48 route.
WHAT HAPPENS AFTER 18 MONTHS?
40. As set out above, it is unbelievable
that a separate Scotland would be a Member State of the European
Union by 24 March 2016. Professor Armstrong told us that "the
idea that all of this could be completed within that period is
wishful thinking. I do not know of any example where an entity
seeking to become a Member State of the European Union had itself
set the date on which that would occur."[49]
Not only has no other Member State set such a target for its membership
application to be completed but the other Member States have little
reason to meet it.
41. Should it look likely that Scotland's
deadline for membership be missed then three courses of action
are readily identifiable: (i) Scotland leaves the European Union;
(ii) a provisional arrangement is made to continue aspects of
Scotland's existing relationship with the EU; (iii) the date for
independence is postponed. Other choices may be available and
under consideration by the Scottish Government, if so, they should
share these with Scottish voters.
42. There is no evidence to suggest
that any Member State regards Scottish membership of the EU, on
the right terms, as contrary to their national interest but this
does not mean that Member States would fast-track Scotland's request
for membership simply because this is what Scotland demands. Were
Scotland to insist on separation without the matter of EU membership
resolved then, in Graham Avery's words, the situation would become
a "legal nightmare":
Unless Scotland continues to apply
EU rules, life will be become diabolically complicated for firms
and citizens, not just in the UK, but in Germany, Spain and elsewhere.
It is well known that citizens and firms in Member States other
than the UK have rights in Scotland, by virtue of Scotland being
a member of the EU and, if Scotland no longer applied EU rules
and no longer had EU obligations, they would be in a right mess.[50]
It is therefore possible that the EU
might make efforts to continue Scotland's presence on a provisional
basis.
43. Graham Avery indicated that Scotland
could apply to become a member of the European Economic Area (EEA).
States in the EEA participate in the EU's internal market but
the EEA does not cover fisheries and agriculture. Therefore, if
Scotland went down this route some form of customs controls would
need to be introduced in these areas.[51]
A country in the EEA also has no say in decisions taken by the
EU. Membership of the EEA would need to be negotiated and ratified,
not just with the 28 EU Member States but also with Norway, Iceland
and Liechtenstein. Given the First Minister's recent threats to
block access to Norwegian waters if Scotland did not receive EU
membership, Norway's assent may now be more difficult to get.[52]
44. Professor Armstrong explained that,
if membership was pursued through the accession route (Article
49) then, if the accession treaty had been agreed but not yet
ratified:
It is not inconceivable that that
treaty could provide for the provisional application of certain
aspects of the treaty, pending ratification. Precisely what those
would be is a matter for negotiation. It might be that they would
deal largely with ensuring continuity of free movement within
the single market, but when it came to more difficult issues of
receipt of funds, or participation in institutions, that would
not be possible.[53]
45. It is clear that any provisional
arrangements would leave Scotland in a poorer position and with
less influence in the EU than it currently enjoys as part of the
UK. Such arrangements would also not provide any certainty over
a date for membership. Graham Avery concludes:
For me, the alternative ideas that
people talk about for the interim period are not very convincing.
Candidly, from the point of view of the legal ingenuity needed
to put them in place, they would be just as complicated as putting
in place an accession treaty from day 1 - probably more so.[54]
We do not believe that negotiation
and subsequent ratification of Scotland's membership of the EU
could be concluded by 24 March 2016. The Scottish Government have
to tell the Scottish people which of the alternative options available
they favour. The alternative scenarios of Scotland leaving the
EU and entering into complex provisional arrangements or joining
the European Economic Area are neither guaranteed nor satisfactory;
they offer little benefit, but could cause significant harm to
Scotland's interests.
46. An obsession with securing membership
of the European Union by a specific date has significantly weakened
the Scottish Government's negotiating position. It was a mistake
to have made such a commitment. The Scottish Government must clarify
for the people of Scotland whether, in the event of a yes vote,
its focus in any negotiations would be on getting the best outcome
for Scotland or meeting an arbitrary and self-imposed timetable.
14 Written evidence to the European and External Relations
Committee of the Scottish Parliament, 12 January 2014 [Professor
Armstrong] Back
15
Scottish Government White Paper, Scotland's Future: your guide
to an independent Scotland, November 2013, p221 Back
16
Ibid., p220 Back
17
Ibid., p221 Back
18
Q4201 Back
19
Written evidence to the European and External Relations Committee
of the Scottish Parliament Back
20
Letter from Rt Hon David Lidington, Minister for Europe to the
Chair of the Committee, 30 April 2014 Back
21
Written evidence to the European and External Relations Committee
of the Scottish Parliament Back
22
Q4197 and evidence taken before the European and External Relations
Committee of the Scottish Parliament, 23 January 2014, p1695 Back
23
Mr Barroso was referring to application through the formal accession
route under Article 49. Back
24
Written evidence to the European and External Relations Committee
of the Scottish Parliament Back
25
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 3 April 2014, p1947 Back
26
See oral evidence and written evidence given to European and External
Relations Committee of the Scottish Parliament. Back
27
Acquis Communautaire refers to the cumulative body of European
Community laws, comprising the EC's objectives, substantive rules,
policies and, in particular, the primary and secondary legislation
and case law - all of which form part of the legal order of the
European Union (EU). This includes all the treaties, regulations
and directives passed by the European institutions, as well as
judgments laid down by the European Court of Justice. Back
28
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 23 January 2014, p1714 Back
29
The European Council, with the consent of the European Parliament,
can dispense with the requirement for a convention but an intergovernmental
conference would still need to be convened to adopt the treaty
amendments by unanimity and with ratification by all member states
consistent with their national constitutional requirements. [source:
Professor Armstrong, Scotland's future in the EU, www.eutopialaw.com] Back
30
Scottish Government, Scotland and the European Union, November
2013 Back
31
Written evidence to the European and External Relations Committee
of the Scottish Parliament Back
32
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 23 January 2014, p1700 Back
33
Q5223-5 Back
34
Scottish Government White Paper, Scotland's Future: your guide
to an independent Scotland, November 2013, p221 Back
35
Q5229 Back
36
Written evidence to the European and External Relations Committee
of the Scottish Parliament Back
37
Legal advice on Scotland and EU exists but will remain secret,
stv news, 6 June 2013 Back
38
Ratification is the process of agreement by individual Member
States. It can be carried out by national parliaments or through
referenda. Back
39
Q5217 Back
40
Q5217 Back
41
Q4242 [Professor Armstrong] Back
42
Written evidence to the European and External Relations Committee
of the Scottish Parliament [Professor Armstrong] Back
43
Written evidence to the European and External Relations Committee
of the Scottish Parliament Back
44
Q4108 Back
45
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 20 February 2014, p1811 Back
46
See for example: Written evidence to the European and External
Relations Committee of the Scottish Parliament by Graham Avery,
and comments made by Professor James Crawford (source: Daily Record,
Legal expert says Scotland could become an independent country
within 18 months of yes vote, 12 February 2013) Back
47
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 30 January 2014, p1737 Back
48
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 3 April 2014, p1947 Back
49
Q4109 Back
50
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 30 January 2014, p1743 Back
51
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 30 January 2014, p1744 Back
52
See Speech made by the First Minister at the College of Europe
in Bruges, 28 April 2014,.Should Scotland not be able to secure
unbroken membership of the EU the First Minister has threatened
"the fishing fleets of 12 countries being denied access to
Scottish waters and as a consequence, their access to Norwegian
waters". Back
53
Q4201 Back
54
Evidence taken before the European and External Relations Committee
of the Scottish Parliament, 23 January 2014, p1744 Back
|