An Independent Scotland: The Road to Membership of the European Union

Abstract

•This paper addresses the road to membership of the European Union for an independent Scotland. • The UK Government and Scottish Government each undertook in the Edinburgh Agreement of 15 October 2012 to respect the result of the referendum of 18 September and to work in the interests of the people of Scotland and the United Kingdom. In light of this, and of widespread agreement that it would be in the interests of the people of the UK to see an independent Scotland admitted to the European Union, it is likely that both governments will, in the event of a Yes vote, work to facilitate Scotland’s membership of the European Union. • There are strong reasons to believe that following a Yes vote the European Union would also be prepared to open negotiations aimed at securing the membership of an independent Scotland. Scotland is already part of a Member State, its residents are European citizens, the writ of European law already runs in Scotland and its territorial location is of importance to the European Union for strategic and resource-based reasons. • In the event of a Yes vote we anticipate that tripartite negotiations will be established involving the Scottish Government, the UK Government and institutions of the European Union, most obviously the European Commission, working towards the accession of Scotland to full membership of the EU and any necessary adjustment of the UK’s level of representation within European institutions. It is likely that in this period preparatory drafting of a formal accession treaty will take place. • It is highly likely that the United Kingdom will continue in membership of the European Union and that Scotland will require to be admitted as a new member state. Article 48 TEU provides a feasible route by which Scotland’s membership could be realised. It is, however, more likely that Scotland will require to make an application to join the European Union by way of the Article 49 of the Treaty of the European Union procedure and that, accordingly, the unanimous agreement of all Member States to any ratification agreement will be required. • The Scottish Government hopes that Scotland will formally accede to membership of the EU by March 2016. This timetable is ambitious. There will be a number of complex and potentially contentious substantive issues to be negotiated. It is also not possible to predict with certainty how long the ratification process in each Member State might take. • In the event that Scotland’s full membership of the European Union is not achieved by the date of Scottish independence (in particular, pending conclusion of the respective Article 48 or 49 treaty amendment/accession processes) it is likely that the EU will put temporary provisions in place to ensure that the rights and obligations arising from the EU treaties will continue to apply to Scotland in the interim period. This could be done by giving provisional effect to the core aspects of the draft accession treaty until this is finally ratified by all Member States. • In the event of any deadlock in the process of Scotland’s accession to the European Union, the European Union treaties seem to contain an implicit obligation upon the institutions of the EU and the Member States, based upon the principle of European citizenship and the treaties’ fundamental rights provisions, to negotiate towards Scotland’s accession to the EU. There are different grounds of action through which individual citizens could seek to enforce this duty in the Court of Justice of the European Union. There are reasons to believe that the CJEU would intervene to articulate the existence of a duty upon interested parties to negotiate Scotland’s accession to membership in good faith.