Law and Rights

Scotland and the European Union - a tricky point.

Edinburgh Castle

The Scottish National Party's 77th Annual Conference was held at Inverness from 20th to 23rd October. Mr Alex Salmond, Scotland's First Minister and Leader of the SNP, delivered his keynote speech calling for Scottish Independence. "THIS PARTY WILL CAMPAIGN FULL SQUARE FOR INDEPENDENCE IN THE COMING REFERENDUM", said Mr. Salmond.

If "independence" means that Scotland withdraws from the United Kingdom, then some interesting questions are raised and one of them is whether Scotland would be able to remain a member of the European Union. This question is discussed in posts in Firm Magazine 9th May 2011 "Independence: the legal questions" and 26th October 2011 - "UK government lawyers declare an independent Scotland would automatically secede from the EU." In this context, it is important to see just what the European Treaties have to say about States joining and leaving the EU.

Treaty on European Union - Article 49

Any European State which respects the values referred to in Article 2 and is committed to promoting

them may apply to become a member of the Union. The European Parliament and national

Parliaments shall be notified of this application. The applicant State shall address its application to the

Council, which shall act unanimously after consulting the Commission and after receiving the consent

of the European Parliament, which shall act by a majority of its component members. The conditions

of eligibility agreed upon by the European Council shall be taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is founded, which

such admission entails, shall be the subject of an agreement between the Member States and the

applicant State. This agreement shall be submitted for ratification by all the contracting States in

accordance with their respective constitutional requirements.

Article 50

1. Any Member State may decide to withdraw from the Union in accordance with its own

constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention.

In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude

an agreement with that State, setting out the arrangements for its withdrawal, taking account of the

framework for its future relationship with the Union. That agreement shall be negotiated in accordance

with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on

behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the

European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the

withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless

the European Council, in agreement with the Member State concerned, unanimously decides to extend

this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council

representing the withdrawing Member State shall not participate in the discussions of the European

Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the

Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the

procedure referred to in Article 49.

There is no doubt that Scotland is only a member of the EU by virtue of being part of the United Kingdom. Thus, if Scotland secedes from the U.K. then, it may be, that it would have to apply under Article 49 to accede to the EU. The precise position is not clear since there is no clear precedent for it and the Treaties are silent as to the situation where part of a State achieves its own independence.

Arthur's Seat, Edinburgh

Power has been devolved within the United Kingdom by the Scotland Act 1998; the Government of Wales Acts 1998 and 2006 and the Northern Ireland Act 1998. Despite this quite extensive devolution, it cannot (yet) be said that the United Kingdom has transformed itself from being a unitary State to a Federation. If the UK were to transform into a federation, then it may be that any need, if such need exists, for Scotland to have to apply for separate EU membership would be avoided. Would the creation of a Federation be a more sensible way forward than the breakup of the Union? Just a thought!

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