EU reality check

I know you all read the Financial Times and will have already seen this article but it may be worth showing to the household staff. If your servants are doubtful about our entry to the EU, this demonstrates how the doomsayers could be wrong. The judge mentioned is a distinguished Scot who has more detailed legal knowledge of the institutions and of the processes than just about anybody else alive and certainly a lot more than a right wing, anti self determination Spanish politician.


By Mure Dickie in Edinburgh and James Fontanella-Khan in Brussels

EU states and institutions would be legally obliged to launch negotiations on Scotland’s status in the EU if Scottish nationalists win next year’s vote on independence from the UK, according to a former judge at the European Court of Justice.

Talks could not be delayed until after Scotland’s separation from the UK because this would lead to the “totally unacceptable situation” of a part of the EU being plunged into legal limbo, said Sir David Edward, who was British judge at the Luxembourg court from 1992 to 2004.

◦       Whether and how an independent Scotland could retain EU membership has become a key battleground in campaigning ahead of next September’s referendum.

The issue is also of interest to other EU states with independence-minded regions such as Spain.

There are no provisions in EU treaties for the separation of part of a member state, but Scotland’s governing Scottish National party said in a white paper last week that membership could be negotiated ahead of its proposed independence day of March 24 2016.

José Manuel Barroso, European Commission president, has said an independent Scotland would automatically find itself outside the EUand would have to apply to rejoin as a new state.

The warning was reiterated last week by Mariano Rajoy, Spain’s prime minister, whose government is facing calls for independence from Catalan nationalists.

Sir David argues that it would be against the spirit and intention of EU treaties to deprive part of the union and its citizens of membership. Doing so would cast into doubt a complex web of economic and social relationships ranging from fishing rights to student exchange programmes.

“If nothing is done by March 2016, then there is a totally unacceptable situation,” said Sir David, a Scot who says he favours remaining within the UK. “All the recent discussion presupposes that nothing happens until the moment of separation. My simple argument is that is absurd.”

“There is in EU law an obligation on the UK and all other EU member states and institutions to negotiate the terms of the relationship between Scotland, the rest of the UK and the EU after Scottish independence,” he said.

Mr Barroso has not commented on the practicalities of cutting Scotland out of the EU, but some European law experts also believe an independent Scotland could achieve near-seamless accession resulting from negotiations started well before independence day.

All the recent discussion presupposes that nothing happens until the moment of separation. My simple argument is that is absurd

Views of how this could be achieved vary widely. Sir David says the correct approach would be negotiating a change to EU treaties that could allow Scotland continuing membership. The UK government would have to represent both Scotland and the remaining UK in such talks.

Many officials and experts in Brussels dismiss such a route, saying treaty change would be legally and practically impossible and Scotland would have to apply as a new member.

However, some Brussels experts say that with political will, informal negotiations following the referendum could allow the terms of EU entry to be agreed before independence.

“It’s certainly very challenging but not impossible [to hold informal talks before Scotland becomes independent], said a senior EU official, who described such a situation as “uncharted territory”.

Any process of EU membership for Scotland would require agreement of all 28 member states, which many EU officials say could be impossible as the Spanish government would regard quick Scottish membership as an encouragement to Catalonia to follow a similar path.

However, Spain has stopped short of saying it would veto membership for Scotland and has highlighted that Scottish independence would come with the approval of the UK government, which has endorsed next year’s referendum. Madrid says Catalonia is constitutionally barred from leaving Spain.

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0 thoughts on “EU reality check

  1. When the notification of this post came to my phone, I mis-read the footer tag as “Thanks for flyting with Word” – which was a cheery moment. All things are possible.

  2. I often wonder whether the likes of Sir David are really supporters of staying in the Union and perhaps just can’t “come out” because of their professional position .

    Whatever his situation, it’s very even handed of him to put this opinion in print – well done Sir David and pity there aren’t more like him.

  3. More sense talking. When the doomsayers blithely say that Scotland ‘would have to leave then reapply’, they ignore (or have absolutely no idea of) the upheaval that would bring to the EU. Do we leave on independence day or before? What about all the EU nationals who live here? Do we erect border posts? What about the Spanish fishing boats in the north sea? And what about the little issue of 5,000,000 EU nationals who don’t actually want to leave the EU? Is Europe’s biggest oil producer simply to be chucked out as the world and the UN watches in astonishment and with incredulity?

    Man I can’t believe the media actually publish this pish. Jeez. More people like Sir David please, even if they are voting no.

  4. What a silly tangle those people involved in politics manage to create. I can only say I’m relieved that you’re willing to sift through the mess and present us with a clear vision………great for lazy folk ( I include myself ) who hate to read newspapers at the best of times.

  5. Ta Dah!

    Of course all of this ambiguity could be cleared up in short order if Mr Cameron would ask Brussels to make a ruling. The balance of expert evidence suggests not only fast track entry but within the eighteen month period specified by the SG for all negotiations. All Cameron has to do to prove both the experts and the Scottish government in error is ASK THE DAMN QUESTION.

    Mind you he may not like the answer. The currency stance of Westminster and BT is already looking shaky following the BoE’s invitation to the SG for a chit chat on possible currency union. Would they really take a gamble on some much needed EU clarity/sanity too?

  6. By the way, if you’re interested, on newsnetscotland there’s a video of a presentation given by Sir David in Catalonia, where he addresses the question of Scotland’s EU membership. A wee bit dry, so you can jump to 5:00 in if you like. His final slide is:

    “The outcome [of negotiations] would be an agreed amendment of the existing treaties [to accommodate Scotland], not a new Accession Treaty”

  7. @Macart:

    He (Cameron) has probably asked the EU via his civil servants, and already knows the answer – hence his reluctance to come clean.

  8. “…said Sir David, a Scot who says he favours remaining within the UK.” Even allowing for predictable media exaggeration this hardly sounds as though Sir David would in each and every circumstance implacably oppose the very idea that Scotland should not itself remain in the UK. As far as he himself is concerned (if I may take the liberty of making an observation about the words that have been attributed to him) it doesn’t actually say explicitly that he would choose to remain there. Just that he “favours remaining” within the UK. In fact it is no doubt fair to assume that some people would choose to remain there: even just to put the lights out. So perhaps it can be taken to mean that Sir David is in principle in favour of the possibility of people remaining within the UK, whether or not anyone in particular might choose to do so.

  9. Murray McCallum

    Great to read such expert opinions.

    I think the EU and £Sterling zone debates have the common denominator of a fundamental disbelief, among British nationalists, of any intrinsic value of Scotland.

    With the EU we are talking about a collective membership that seeks to set out and protect fundamental rights (unlike Acts of Parliament that largely set out what we cannot do, or limits what we can). An EU member state has to actually struggle through leaving the EU voluntarily! It also seems to me that EU law goes to extraordinary lengths to protect the legal rights of citizens, even when they have committed heinous crimes.

    When you look at the various opinions it seems that those in the UK saying Scotland will have to leave the EU in order to re-apply are effectively categorising the value of Scots citizens as the lowest heap of life in this continent. We ask no favours. We simply continue our individual EU rights.

    On a different tack, let’s say Scotland were forcibly ejected from the EU and its citizens and businesses lost their accumulated rights. Would that not create a scenario for the biggest legal challenge (and financial compensation) in EU history?

  10. TBH, apart from the debate showing complete contempt for the Scottish people, both on the part of unionist politicians and the mainstream media, it doesn’t bother me. A new state with a 200 mile exclusive fishing zone? I’ll take it! And, by the way, I don’t think the Spanish PM’s fishermen would be very impressed with his comments for that reason!

  11. If an independent Scotland prosperity was based upon service industries – as in London – then yes I would be concerned over continuing EU membership or not. Countries with the will could develop rival service industries to Scotland’s.But many of the goods we have for trade cannot be challenged in the way a service industry can. Rival countries cannot create a North Sea of oil, gas, and fisheries resources, nor wind and wave power. We have these base resources and we can trade them whether we are in the EU or not. Our present situation is that we have these resources but we cannot trade them, we simply hand them over to the UK to trade.
    Beyond these base resources there is a myriad of income sources that will come to the independent Scottish Exchequer.

  12. Can you imagine the fuss if it were actually SNP policy to immediately leave the EU in the event of a Yes vote? Everybody would be screaming that they couldn’t just leave! We couldn’t just take away the rights of other EU citizens to live and work in Scotland – just like that! They’d be saying it was an insane policy…madness. Yet, when it’s the other way around and Scotland wants to stay in and avoid all these problems….they say it’s impossible and we’re mad to think it can happen.

  13. Welcome back.


    I dread to enter into legal arguements, for all the obvious reasons.

    But there does appear to be a precedent for a state splitting and both remaining within the EU.

    Denmark and Greenland have a somewhat chequered history, but the important dates, for the purposes of my arguement are these:

    In 1972 Denmark and Greenland joined the EU

    In 1979 Greenland got semi-independence, a sort of devo – lite settlement

    It was not until 1985 that Greenland left the EU.

    It seems to me that Greenland sort of split from Denmark in 1979 yet remained in the EU until it decided to leave in 1985.

    As this seems to be a pretty obvious case, albeit with some differences, though not as many as one might think, I wonder why it is never cited? I accept that devolution and independence are different beasts but I’m not sure the Greenlanders would agree. They appear to have obtained the degree of independence that they wanted.

    Any thoughts?

    • Hi Doug. This case is frequently presented as a point of how difficult it is to leave the EU even when both parties want to! Given that Scotland wishes to remain inside, I think that the parallels are not particularly close.

      In the end I firmly believe that Realpolitik will triumph any and all “objections”. Scotland is and will remain a supportive member of the EU (unlike the UK over the last 30+ years) and will be welcome not only for that, but for its assets, and the likely financial support it will bring. This is a non story (like the Sterling Zone).

      • aplinal,

        Perhaps, and probably, I wasn’t being clear enough.

        The arguement we face is that, on separation, or whatever you want to call it, we will be a pariah that will have to re-negotiate our membership from outside the EU.

        I do not wish to overstate the case, but between the split of Denmark and Greenland there were six years, 1979 until 1985 where a de facto independent government , carved out of a previously unified state was not excluded from the EU.

        I think it is a precedent.

        No-one was chucked out of the EU because they were (perhaps) working towards their own independence. Or had argueably got it.

        I am raising this merely to see what opposite point of view there may be.

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