EU Negotiations

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The Lisbon Treaty

Article 48 (discussed below under "Legalities of the Application") of the Treaty of Lisbon is concerned with revisions to the Constitution of the European Union[1]. Article 49 deals with applications for membership[2].

References

  1. Lisbon Treaty Article 48
  2. Lisbon Treaty Article 49
FOR THE UNION FOR INDEPENDENCE
Legalities of the Application

The Pro-Union view is that Scotland will not find it simple to enter the EU as a new member. Article 48 of the Lisbon Treaty - the intended entry route – has never been used in this way.[1] Instead, Article 49 would be the most appropriate route for Scotland’s entry into the EU, since it is concerned with the application of new member states from the outside whereas the former acts as a method of amending existing EU treaties from the inside [2]. This opinion is backed by the president of the European Council, Herman Van Rompuoy, who states[3]
‘a new independent state 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 any more on its territory’

Applicants are expected to fully implement the EU’s rulebook, known as the acquis communautaire. Any opt-outs need to be approved by all 28 existing EU member states, which have a veto over membership applications[4]. The formal negotiation and ratification process could not start until after a formal application took place after independence.
A revision of the treaty via Article 48 would, by necessity, not be limited to Scotland: ‘every other EU member state would have the right to add items to the proposed treaty revisions’[5]. For this reason, the process of revision could take an uncertain length of time.

Transition process

Scotland would not receive special treatment despite the unprecedented situation[6].
The Centre Forum think tank assumes that Scotland would spend at least 24 months outside the EU after independence whilst a Scottish application under Article 49 is processed and ratified. The length of accession negotiations and ratifications will depend on what opt-outs Scotland sought to secure, and on agreeing outstanding issues with the rUK[7].

Opt-outs

It has been suggested that the EU might retract various opt-outs agreed by the EU with the UK – including currency and Schengen border policy[8].

Opposition from EU Members

The ease with which Scotland may enter the EU is further complicated by countries within the EU with their own secessionist movements. Countries such as Spain and France would oppose a seamless transition to independence; for fear that their own separatist regions may seek to do the same[9].
Ruairi Quinn, former Irish Labour Party leader and president of the Economic and Financial Affairs Council of the EU in 1996, is of the opinion that at least two Member States, maybe more, will vote no to Scotland's application[10].

Effect of a period outside the EU

It may be possible for Scotland to gain market access through the European Economic Area (EEA), though this would incur a cost. Norway is currently paying €188m per annum between 2014 and 2019, and adjusted for relative wealth and population, Scotland’s contribution should be approximately €75m per annum. Outside of the EU, Scotland would be ineligible for Common Agricultural Policy (CAP) subsidies. Replacing CAP subsidies would cost £577.3m in 2016/17[11].


References

  1. HM Government: Scotland Analysis: EU and International Relations para 3.15
  2. HM Government: Scotland Analysis: EU and International Relations para 3.14
  3. Scotsman: Independent Scotland would have to reapply to EU 14/12/13
  4. Centre Forum: Scottish Independence: a political and economic appraisal by Tony Fenwick , May 2014
  5. Fenwick,supra
  6. Scotsman: Independent Scotland would have to reapply to EU 14/12/13
  7. Fenwick, supra
  8. HM Government: Scotland Analysis: EU and International Relations Chapter 3
  9. Fenwick, supra
  10. Herald: Entry to the EU 'would be vetoed' 25 August 2014
  11. Fenwick, supra
Legalities of the Application

The SNP has identified Article 48[1] as the most suitable method of transition. Article 49 is unsuitable to this particular case. Graham Avery, senior adviser at the European Policy Centre, Brussels, and honorary director-general of the European Commission, in a note to the House of commons Foreign Affairs Select Committee in 2012, highlighted the impracticality of the Article 49 route, which would require Scotland’s exit from, and re-admission to, the EU. The EU would adopt simplified procedures for Scotland’s unprecedented application[2].
Sir David Edward, a judge in the European Court for 14 years, told a Holyrood committee in January 2014 that membership of the European Union would require “relatively small” amendments to existing treaties and recalled repeated occasions where politicians have asserted positions which the court has found to be wrong[3]

Transition process

The transition to becoming an independent member state within the EU will be with minimal disruption, according the Scottish Government[4]. Negotiations will occur while Scotland remains part of the UK and the EU prior to independence. One of the authors of a legal opinion for the Westminster Government, Professor James Crawford of Cambridge University, has said that the SNP Government's 18-month transition for independence is "realistic". He also said the application for membership of international bodies by a newly independent Scottish state would not be difficult in most cases[5]. Avery states that 'Scotland’s citizens have a legitimate expectation of the maintenance of the status quo in terms of economic and social conditions,' mainly due to the ‘rollover’ of existing UK arrangements until various EU rules are revised in the years following independence[6].
Sir David Edward[7] told the Holyrood Committee
"...the treaties create rights for individuals which become part of their legal heritage ...the institutions of the EU and the member states have an obligation if there is a vote for independence to ensure that those acquired rights are not abridged or terminated and that imposes an obligation to negotiate before there is a separation and creation of a new state."

Simon Horner, a recently retired EU official and "Yes" voter, comments[8]:

"The idea that we would come behind Serbia or Albania in the queue really is nonsense ... some of the discussions would not be easy. But I have no doubt that compromises would be found, as they are on so many European issues...Scotland already adheres to the acquis – implementing the existing rules of the EU – so most of the negotiating “chapters” that apply to new accessions wouldn’t even have to be opened."

Opt-outs

The Scottish Government plans to continue the various opt-in/opt-out agreements reached between the UK within the EU, including the Euro and Schengen border policies.[9]

Support from EU Members

In February 2014 the Spanish foreign minister José-Manuel García-Margallo said [10]
“We don’t interfere in other countries’ internal affairs. If Britain’s constitutional order allows – and it seems that it does allow – Scotland to choose independence, we have nothing to say about this.”

A current MEP for Slovakia, Eduard Kukan, told Scottish Community Radio: 'the overwhelming majority would welcome this new country and new state'. An independent Scotland could further enrich the diversity of the EU.[11]

Effect of a period outside the EU

Aiden O’Neill QC told the Holyrood Committee[12]
"If Scotland as an independent entity were to leave the European Union, the European citizenship of the people would remain unless and until their British nationality were withdrawn from them ... Not only is there an obligation of good faith but common sense to try and resolve that instability of having five million people who are citizens but whose state has no status within the union. Something will be worked out – it always is."

References

  1. BBC:Would Scotland be in the EU after a yes vote? 29/4/14
  2. Graham Avery: The foreign policy implications of and for a separate Scotland, 14/9/12
  3. Scottish Legal News: Lawyers give evidence to SPs on Scotland’s EU membership post independence 14 Jan 2014. Sir David said: "There is a gap between the vote and independence, and in that period you have an obligation to negotiate a solution to the problem. That is ignored by Barroso, Van Rompuy and all those who talk about it.
  4. Scotland’s Future: Chapter 6: International Relations and Defence
  5. Herald: Independent Scotland would need 200 new public bodies, says Coalition 12 Feb 2014
  6. Scottish Legal News: Lawyers give evidence to MSPs on Scotland’s EU membership post independence 14 Jan 2014.
  7. Scottish Legal News, supra
  8. Liberal Democrat Voice: Why I'm voting Yes Scotland on September 18 Sep 6, 2014 (retrieved 7 Sep 2014)
  9. Scotland's Future, supra
  10. Channel 4 FactCheck: would an independent Scotland stay in the EU? February 17, 2104 (retrieved 29 August 2014):
  11. Herald: Independent Scotland would be welcomed by EU says Slovakian MEP 14/6/13
  12. Scottish Legal News, supra