The Ejection of Nascent States from the European Union

II. The Ejection of Nascent States from the European Union

2.1. The Legal Position of the European Officers The European institutions have not stated what could be considered as an official position

regarding the consequences of regional secessionism in EU law terms. In addition, it cannot be ruled out the more than plausible prospect that the issue would be solved beyond mere legal considerations that surpass the scope of this study. According to Boyle and Crawford, the non- legal considerations might govern any negotiated outcome and might be more important in practice 103 .

Despite the above said, in the absence of an authorised stance, there had been numerous officious declarations from several relevant Union representatives the importance of which should not be disregarded. The main argument that can be identified from their statements is that the EU treaties would instantly cease to apply to the seceding territory. Thus, there would

be a legal termination from the very moment a region would declare its intention to become an independent State (or even from the very moment a majority would vote for independence, according to some opinions). Even if initially the main argument set forth by the Commission was that estimate the consequences of a future secessionist scenario would be unnecessary, since the question was purely hypothetical 104 , the above described position has been reaffirmed by several Commission spokespersons and high offices. The first consideration ever made regarding the issue in relation to Algeria was made on the 1 st May 2004 by the former Commission President, Mr Prodi, as an answer to a question made by the MEP Eluned Morgan 105 :

102 http://www.naciodigital.cat/noticia/63499/gounin/haura/negociacio/entre/catalunya/espanya/ue 103 Boyle A and Crawford J, Referendum on the Independence of Scotland: International Law Aspects, UK Government. 104 In 2006, as an answer to the Question no 84 by Catherine Stihler (H-1086/06), it was said that: The Honourable Member's questions raise a large number of issues which come within the bounds of international law. It is not customary for the Commission to state its views on matters which, as things stand, are purely hypothetical. Similarly, in 2007: The Commission maintains that, as things currently stand, the situation envisaged remains hypothetical. 105 Can the Commission confirm that, if a Member State were to divide as a result of a region democratically gaining independence, that the precedent set by Algeria would apply? Can the Commission explain what exactly happened in

The European Communities and the European Union have been established by the relevant treaties among the Member States. The treaties apply to the Member States (Article 299 of the EC Treaty). When a part of the territory of a Member State ceases to be a part of that state, e.g. because that territory becomes an independent state, the treaties will no longer apply to that territory. In other words, a newly independent region 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 anymore on its territory.

Under Article 49 of the Treaty on European Union, any European State which respects the principles set out in Article 6(1) of the Treaty on European Union may apply to become a member of the Union. An application of this type requires, if the application is accepted by the Council acting unanimously, a negotiation on an agreement between the Applicant State and the Member States on the conditions of admission and the adjustments to the treaties which such admission entails. This agreement is subject to ratification by all Member States and the Applicant State. 106

To give an example of a Commissions spokesperson statement, in March 2014 Pia Ahrenkilde Hansen answered as follows:

Scenarios such as the separation of one part of a member State or the creation of a new State, as we have recall on numerous occasions, would not be neutral as regards to the EU treaties. An independent state, because of its independence, would become a third country vis-à-vis the EU and as of the day of the independence the EU treaties will no longer apply. 107

In the same intervention, Ahrenkilde made clear what has been a general tendency regarding the issue. After having declared such a categorical statement, with self-evident legal implications, then she expressed: We would only express our opinion on the legal consequences under EU law on request from a member State. The Commissioner for Internal Market and Services, Mr Barnier, has followed the exact paradoxical position, first stating that there are not sufficient grounds to establish an authorised position, but then arguing the very outcome of the situation at stake:

Evidemment, nous suivons cette question avec beaucoup d attention, sans spéculer sur les différents scenarios possibles. Nous avons un rôle très claire, nous donnerons notre avis uniquement quand on nous présenterait un scenario juridique décidé. Donc, pas de commentaires et pas de spéculation.

La seule chose que je peux dire, du point de vue du droit, des traites, c est que si une région sort d un État membre de l Union et devienne indépendante, de facto, elle sorte de l Union Européenne et un nouveau traité d adhésion devienne nécessaire. Voilà ce que je peux dire. 108

This inconsistent attitude has been continuous. The Commissioner for Competition, Mr Almunia, in August 2012 declared that: It would be dishonest to state categorically that an independent Catalonia would be left out of the European Union. The question is not a black and

the Algeria case? Could the Commission confirm whether a newly independent region would have to leave the EU and then apply for accession afresh? Would an application of this type require a renegotiation of the treaties at an IGC and the unanimous agreement of the 25 Member States? 106 Parliamentary questions, 1st March 2004, P-0524/2004. Answer given by Mr Prodi on behalf of the Commission. 107 Pia Ahrenkilde Hansen, Spokesperson, I-085292 / European Commission, Berlaymont press room, Brussels. 108 http://ec.europa.eu/avservices/video/player.cfm?ref=I081751 the Algeria case? Could the Commission confirm whether a newly independent region would have to leave the EU and then apply for accession afresh? Would an application of this type require a renegotiation of the treaties at an IGC and the unanimous agreement of the 25 Member States? 106 Parliamentary questions, 1st March 2004, P-0524/2004. Answer given by Mr Prodi on behalf of the Commission. 107 Pia Ahrenkilde Hansen, Spokesperson, I-085292 / European Commission, Berlaymont press room, Brussels. 108 http://ec.europa.eu/avservices/video/player.cfm?ref=I081751

Another case of irregular answers comes from the Commissioner for Justice, Fundamental Rights and Citizenship. In September 2012, Ms Reding answered to a journalist who gave for granted the ejection of regions from the European Union as a consequence of their independence, Oh, come on! Come on! International legislation does not say anything like that! 111 Then, in February 2014, Ms Reding expressed a different view:

The law says that an independent Catalonia would no longer be part of the Union. An independent Catalonia would have to apply for EU membership again. To put it bluntly: a few seconds after a vote for independence, Catalonia would be out of the Union. You would be out of the euro system. You would not have EU citizenship. In short: I would lose you. The process to come back into our Union would not be a quick one. It would be lengthy. It would require long negotiations and the unanimous approval of all EU countries. It would be a project of a generation. 112

More consistent has been the President of the European Council, Mr Van Rompuy, who has delivered a declaration identical to that of Mr Prodi relying upon the applicability of article 49 of the TEU.

Final examples are the numerous declarations of the President of the Commission. Just to mention one of them, Mr Barroso, replied to Lord Tugendhat also with an exact transcription of Mr Prodi statement. The Financial Times referred to the question: As if a 10-year-old statement in an obscure official journal were not enough, Barroso himself just over a year ago sent a letter to the House of Lords restating that position. 113 Later on, Mr Barroso has gone beyond when he affirmed: "We've seen that Spain has been opposing even the recognition of Kosovo, for instance, so it's to some extent a similar case because it's a new country, and so I believe it's going to be extremely difficult, if not impossible, a new member state coming out of one of our countries getting the agreement of the other." 114

These new declarations triggered strong criticism. Currie considered that: The statement he [Mr Barroso] made was extremely unwise and I also think it was inaccurate, in so far as he said

109 http://www.catalannewsagency.com/politics/item/almunia-now-states-that-an-independent-catalonia-would- be-out-of-the-eu-and-the-european-commission-backs-him

110 Author s translation: No solo en relación con Cataluña, sino también en relación con otros territorios de la Unión Europea, si una parte del territorio de un Estado miembro, por la vía correspondiente, decide segregarse de ese

Estado miembro, la parte segregada no es parte de la Unión Europea. http://www.rtve.es/noticias/20130916/almunia-advierte-cataluna-saldra-si-se-independiza/746847.shtml 111 http://www.diariodesevilla.es/article/espana/1364398/ninguna/ley/dice/cataluna/deba/salir/la/ue/si/ se/independiza.html 112 Vice-President Reding's Remarks on Catalan independence. European Commission - SPEECH/14/152 Barcelona, 23/02/2014. 113 http://blogs.ft.com/brusselsblog/2014/02/17/how-unexpected-was-barrosos-scotland-declaration/ 114 http://www.theguardian.com/politics/2014/feb/16/independent-scotland-extremely-difficult-join-eu Estado miembro, la parte segregada no es parte de la Unión Europea. http://www.rtve.es/noticias/20130916/almunia-advierte-cataluna-saldra-si-se-independiza/746847.shtml 111 http://www.diariodesevilla.es/article/espana/1364398/ninguna/ley/dice/cataluna/deba/salir/la/ue/si/ se/independiza.html 112 Vice-President Reding's Remarks on Catalan independence. European Commission - SPEECH/14/152 Barcelona, 23/02/2014. 113 http://blogs.ft.com/brusselsblog/2014/02/17/how-unexpected-was-barrosos-scotland-declaration/ 114 http://www.theguardian.com/politics/2014/feb/16/independent-scotland-extremely-difficult-join-eu

As the man who runs the Commission, he is entitled to set out his views of European law. But he should not judge the likelihood of a successful application, speak on behalf of Spain, or suggest that peaceful referendums in western Europe are equivalent to the violent break-up of a Balkan country. 116

2.2. Introductory Interpretations To begin with, all of these considerations seem to part from one fundamental assumption:

Catalonia or Scotland would be regarded as the newly created States , according to the Vienna Convention s definition 117 and Spain and the United Kingdom, respectively, would so as the

successor States . As a consequence, the membership in the Union of the latters would be guaranteed; on the other hand, the formers will no longer be a part of it.

This could be regarded as a logic assumption in the referred cases, where Catalonia and Scotland are only a small portion of their mother States, but as explained in the first part, it is not clear at all what would be the situation in the event of other parts of Spain eventually becoming independent (would then the process be regarded as one of decomposition instead of mere secession? How could be determined what is the remaining part of Spain?) or in the case of Belgium, where the newly created State, Flanders, would hold more than half of the population of the old country. Following the same reasoning, if Flanders were to become independent, Wallonia, with half of the Flemish population, would be then regarded as the

successor State. Yet, in words of Edward: It would be natural for an outsider to assume that the separation of Flanders and Wallonia would result in the emergence of two new States and that the Kingdom of Belgium would in consequence cease to exist. 118

Again, when it comes to State succession, the attribution of strict categories can jeopardize the construction of a solid reasoning. When e.g. Mr Almunia declares that this would be the fate of no matter what EU territory , he seems to forget the very different scenarios that could arise. Same as it seems unlikely that anyone would suggest that [the UK] membership could somehow lapse as a consequence of the loss of population and territory occasioned by Scottish independence 119 , the situation is completely different in the case of Belgium. Avery comes to that conclusion when he expresses that: If a break-up of Belgium were agreed between Wallonia and Flanders, it is inconceivable that other EU members would require 11 million people to leave the EU and then reapply for membership 120 . In words of Edward:

115 Scottish Parliament. European and External Relations Committee, oral evidence (20 February 2014). 116 http://www.economist.com/news/europe/21596964-how-scotlands-referendum-affecting-politics-europe- homage-caledonia 117 Article 2(f). 118 Ibid 72, p 1157. 119 HM Government, Scotland Analysis: Devolution and the Implications of Scottish Independence (2013), p 99. 120 House of Commons, Foreign Policy Considerations for the UK and Scotland in the Event of Scotland Becoming an Independent Country, sixth Report of session 2012-13, p 143.

On closer examination, it can be seen that the Barroso theory is workable only in a situation, like Scotland and the RoUK, where one entity is significantly larger than the other, and it can plausibly

be said that one of them is the successor State and the other the seceding or separating State. In the case of Flanders and Wallonia (assuming the extinction of the Kingdom of Belgium), the logic of the Barroso theory suggests that both must be classified as new States, so that the political institutions of the EU (including Mr Barroso s office) would find themselves in a third country .

It might be suggested that this would produce such absurd and unacceptable results that the EU would accept both Flanders and Wallonia as successor States which would then be entitled automatically to the status of member States in their own right. The case of Scotland and RoUK would, by contrast, be treated according to the Barroso theory. That might be a political solution, but hardly adequate as a legal one, nor for that matter consistent with the principle of non- discrimination [emphasis added]. 121

An important element that contrasts with the European legal logic is the fact that the most prominent institution that has taken a role in the question is the Commission, instead of the European Council. According to Article 15 of the TEU, it is for the second to provide the Union with the necessary impetus and to define the general political directions . From this standpoint, despite profound legal reflections can be made apropos State succession and EU law, one must not lose sight that this is eminently a political issue, so the main response to it would probably come from the European Council, rather than from the Commission. Both in Articles 49 and 50 of the TEU, it is the European Council, as the highest political instance of the Union, which plays a fundamental part. It is not unlikely that the issue would be solved on the basis of the intergovernmental method, given that the Commission is not the final arbiter of these matters. In any case, Article 17 of the TEU mandates the Commission to promote the general interest of the Union and it is indeed certainly difficult to see how an automatic ejection, with all the negative economic and social consequences that would surely involve for the whole Union, could guarantee such principle.

2.3. Further Examination We can extract three additional conclusions from the statements made by the European

representatives. On the one hand, an official and definitive legal position in respect to the question has not yet been stated by the European institutions. Furthermore, the position of different members of the European institutions has been frequently contradictory or inconclusive. On the other hand, despite the nature of some of their comments on the matter, which can be more than probably explained under political grounds, apparently the European institutions are inclined to embrace the idea that the new States would no longer be under the umbrella of the Treaties, and thus, left out from the Union from the very instant they would become independent (what exactly is to become independent is a matter that will be discussed in section 3.4). This theory is clearly in line with the conception of tabula rasa, according to which, if Scotland or Catalonia were to become nascent States, the old links with the European legal order would be abruptly disrupted, from the day of its independence , in

121 Ibid 118.

words of Mr Van Rompuy; a few seconds after a vote for independence , in words of Ms Reding. This so-called Barroso theory , has been described by Edward as follows:

It seems to be assumed that at the moment of separation, or on some other unspecified date, the separating State , its citizens and its land and sea area would find themselves in some form of legal limbo vis-à-vis the rest of the EU and its citizens, unless and until a new Accession Treaty were negotiated. Until the moment of separation, they would remain as integral part of the EU; all EU citizens living in the separating State would enjoy all the rights of citizenship and free movement; and the same would apply, correspondingly, to all other EU citizens and companies in their relations with that State. Then, at the midnight hour, all these relationships would come abruptly to an end [emphasis added]. 122

In the academic field, Weiler seems to agree with the position adopted by the Commission, but basing his analysis upon geostrategic, so to say, arguments: The assumption of automatic membership in the Union should be decisively squelched by the countries from whom secession is threatened and if their leaders, for internal political reasons, lack the courage so to say, by other member States of the Union, France in the lead. 123 In the same article from the European Journal of International Law, he further develops his political, rather than legal, reflexions by considering the Catalan pro-independence movement as a [f]orm of irredentist Euro-tribalism which contradicts the values and needs of the Union . In 2013, he reaffirmed his position in a new Editorial launched as an answer to the criticism 124 triggered in response to his first editorial, in which he finally repeated: Independence? Bon Voyage. But not in the EU 125 . These moral opinions are certainly ambivalent when analysing the subject but Borgen, on the other hand, is in favour of Mr Barroso position relying upon legal considerations: [ ] it is clear that if

a region of an EU Member State secedes, it will not only have to seek recognition, but also apply to re-enter the EU, this time as a Member State. 126

Whether the position adopted by the European officers can be vindicated upon sole genuine legal considerations, rather than political ones, is a doubt that has been constantly present in the debate 127 . As a matter of fact, several members of the European institutions have expressed their personal political views on self-determination movements within Europe and frequently they have mixed these opinions with some apparent legal appreciations. For instance, in 2012 Mr Van Rompuy declared that: "Separatism is a world of the past. Nobody has anything to gain from separatism in the world of today which, whether one likes it or not, is globalised [ ]. The president would never involve himself in a national dispute. However, Scotland will need to reapply for EU membership" 128 . Without diminishing the relevance of these declarations, it should be recalled that they do not seem to institute an articulated, coherent and official legal position, but rather isolated political considerations. When Ms Reding reveals something as strong as the Law [emphasis added] says that an independent Catalonia would no longer be part of the Union , and immediately after she starts making generic and non-legal appreciations

122 Ibid 69, p 1165. 123 Weiler J (2012), Editorial. 124 Eg Krisch N (2013). 125 Weiler J (2013), Editorial. 126 Ibid 23, p 1028. 127 Vaubel R (2013), p 16. 128 http://www.theguardian.com/politics/2012/nov/08/alex-salmond-scotland-independence 122 Ibid 69, p 1165. 123 Weiler J (2012), Editorial. 124 Eg Krisch N (2013). 125 Weiler J (2013), Editorial. 126 Ibid 23, p 1028. 127 Vaubel R (2013), p 16. 128 http://www.theguardian.com/politics/2012/nov/08/alex-salmond-scotland-independence

Where, thus, is Barroso grounding his opinion? 130 Similarly, in reference to Her Majesty Government Opinion, Scheffer wrote:

One cannot help but observe a political objective [emphasis added] at work in HMG Opinion, namely to make the legal implications appear so burdensome and traumatic for Scotland and its people, that voters will decide it is not worth the effort and vote no . 131

III.

A Critical Approach to the Barroso Theory

3.1. Overview of Historical Precedents An initial aspect to be taken into account is the pragmatism with which the European

institutions have recurrently proceeded when it comes to complex political situations that were not expressly foreseen in the Treaties. This can be said of several experiences such as the Greenlandic and Algerian precedents , the German reunification, the peculiar legal solution provided for the Turkish Republic of Northern Cyprus or the negotiations established with Kosovo. If these examples cannot be used as precedents in the strict sense of the word, they all suggest the idea that when it comes to challenging geopolitical conflicts, there has never been an

automatic legal outcome (meaning uncritical approval of a certain legal interpretation to the detriment of the European project), but rather an ad hoc and pragmatic one adapted to the particular context 132 . Historically, already in 1957, the then-French Saarland region passed over to the German territory (FRG) without any disturbance vis-à-vis the European Coal and Steel Community Treaty.

The case of Algeria, which became independent from France in 1962, was exceptional, due to the colonial context in which it took place. Thus, the geographical criterion required by the current article 49 of the TEU was obviously not met. Article 227(2) of the former EEC Treaty established a specific regime for the former colony regarding the application of certain provisions (free movement of goods, agriculture, liberalisation of services and competition rules). When Algeria became independent, its institutions requested to the EU to continue implementing the measures foreseen by Article 227(2). The Community did not give an explicit answer to those claims, but it did not automatically disrupt its bilateral relationship and in fact it started signing several agreements 133 .

Another experience that shows the pragmatic position adopted by the European institutions is the Greenland precedent. In 1982, the Greenlandic population voted in favour of

129 http://europa.eu/rapid/press-release_SPEECH-14-152_en.htm?locale=en 130 Ibid 90, p 589. 131 Scheffer D (2013), p 41. 132 Paths for Catalonia s Integration in the European Union, Generalitat de Catalunya, p 12, 133 Association Agreement between the European Community and Algeria, OJ L265 of 10/10/2005.

withdrawing from the European Communities (but not from Denmark). After a negotiation period with the Commission, in 1984 the Council established the withdrawal conditions. Greenland abandoned definitively the European Communities on February the 1 st 1985, three years after the referendum took place 134 . Through the so called overseas countries and territories formula, Greenland had free access to the European market for fishery products. The Greenland precedent reveals that when required, the European institutions have responded, in words of Mason, adapting EC legal theory to the economic and geographic realities of Greenland, rather than rigidly applying various treaty provision [sic]. 135 In addition, Douglas-Scott argues that [t]he example of Greenland illustrates just how long it can take for a territory to withdraw from the EU. 136

In the case of Germany, the same author explains the flexible solution adopted as follows: There was no explicit provision in the treaties capable of dealing with the situation of German

unification in the 1990 . But the (then) EEC Institutions responded to this event in a pragmatic an expedient manner, enabling a united Germany to become a member of the EU without long drawn out negotiations, accession proceedings or legal wranglings. 137

Linde Paniagua states the following: What happened with the merger of both Germanies is an indicator that in the European Union,

solutions beyond the foreseen in the Treaties are possible [emphasis added]. 138

In 2004 Cyprus became a member of the European Union. The complex situation of the Turkish Republic of Northern Cyprus (a self-declared State only recognised by Turkey and de facto occupied by its authorities), was not an obstacle for the Union to tackle it with an original legal solution. As a matter of fact, it was decided that the whole island would be integrated within the European framework; in return, EU law would only be applicable to the southern part. In particular, thanks to a protocol to the 2003 Accession Treaty that specifically dealt with the question 139 , the application of the treaties was agreed only for the southern part of the country. This means, for instance, that the customs and fiscal policies of the Union are not applicable to the other part of Cyprus, but in exchange, the suspension of the acquis communautaire does not affect the personal rights of the northern population, as long as they keep or acquire the Cypriot citizenship, this being the case of a majority of Turkish Cypriots.

Finally, in the case of Kosovo, the results of a feasibility study on the prospects for an agreement with the Balkan State were published by the Commission on 10 th October 2012 140 . The study expounded that there were no legal impediments to reach an agreement, as full recognition was not a requirement 141 . On 28 th October 2013, the Council took the decision of

134 Treaty Amending with regard to Greenland, the Treaties Establishing the European Communities. 135 Mason K (1983), p 13. 136 Douglas-Scott S (2014), p 13.

137 Ibid, p 8. 138 Author s translation: Lo sucedido con el caso de la fusión de las dos Alemanias es un indicador de que en la Unión

Europea caben soluciones a los problemas más allá de lo previsto en los tratados. Paniagua E (2013), p 29. 139 Protocol No 10 on Cyprus, AA2003/ACT/P10/en 1.

140 Feasibility Study for a Stabilisation and Association Agreement between the European Union and Kosovo, European Commission (10 October 2012).

141 For a more detailed analysis see Koeth W (2013).

starting negotiations in order to reach a comprehensive Association and Stability Agreement, even when some member States still now do not recognise Kosovo as an independent State 142 . Among the preliminary conditions, it was agreed that the future agreement would be signed exclusively by the European Union as such. The European Commissioner for Enlargement and European Neighbourhood Policy, tefan Füle, stated that the negotiations with Kosovo could be concluded by the spring of 2014. The Kosovar Stability and Association Agreement would be the first signed after the entry into force of the Lisbon treaty, which conferred legal personality to the EU. In the light of this, the European representative in Kosovo has said that "[u]nlike Stability and Association Agreements with other countries of the region, this one will be exclusively signed by the EU. Since Kosovo is not recognised by five member states, we had to issue a directive saying that the signing of the agreement will not signify that the EU or any of the countries recognise Kosovo as a State." 143

Finally, from the jurisprudential perspective, as already stated, the European Court of Justice has historically said that when it comes to EU law interpretation rules, the context and the values of the Union shall be placed at the centre, as well as the EU s mission. Contrarily, the Barroso theory seems to follow an excessively strict and closed interpretation of the Treaty provisions. According to Douglas-Scott, [t]he Barroso approach interprets EU conventionally as merely a contract between States, given rise to ancillary rights for individuals only as epiphenomena. 144

3.2. Doctrinal Contestation The principle of continuity has been the most prominent in the international context.

Surprisingly, though, the European institutions seem to have embraced the tabula rasa theory as a solution for the eventual Catalan and Scottish independences. This would mean that these States would inevitably be born without any link or connection with the European Union, and that they would be regarded as mere third countries. Some authors clearly support this position, but in general, the doctrine has expressed a much more flexible approach. Vaubel expose a forceful reply to the Union officer s position:

The legal position taken by Barroso, Reding and Van Rompuy has no basis in the European treaties. Nor is there a precedent in EU law. Nor has this question ever been settled in any UN agreement or Vienna Conventions. There are merely practices, and they vary among international organizations. 145

Avery, an honorary General Director of the Commission and Oxford Professor, declares that: For practical and political reasons the idea of Scotland leaving the EU, and subsequently applying

to join it, is not feasible. From the practical point of view, it would require complicated temporary arrangements for a new relationship between the EU (including the rest of the UK) and Scotland

142 These countries are Spain, Slovakia, Cyprus, Romania, and Greece. 143 http://www.worldbulletin.net/?aType=haber&ArticleID=121611 144 Ibid 136, p 17. 145 Ibid 127, p 295.

(outside the EU) including the possibility of controls at the frontier with England. Neither the EU (including the rest of the UK) nor Scotland would have an interest in creating such an anomaly. 146

In words of Linde Paniagua: In order to establish the principle that the seceded territories of a member State would be left out

of the Union, only authoritarian criteria have been used, since there are neither precedents nor legal provisions in the matter. Thus, Prodi s opinion is frequently quoted or more recently some European commissioner s opinions. But things are not that simple. The truth is that any of the European institutions singularly considered has the competence to take decisions on the issue; let alone the persons who integrate or manage them. 147

On its side, Gounin, expresses also a categorical position when he states that: L argument juridique invoqué par la Commission Européenne n est pas dirimant. Quand bien

même les textes ne prévoient pas expressément cette hypothèse, la pratique doit trouver une solution réaliste et efficace à l éventuelle accession à l indépendance d un territoire d un État membre ( ). L absence de précédents transposables, le flou juridique et l ampleur de l enjeu obligeront les parties à négocier. Ce n est pas la réponse la plus éclairante à la question posée. C est sans doute la plus réaliste.

Même si, en toute rigueur, l Écosse, la Catalogne ou la Flandre constitueraient de nouveaux États indépendants, le bon sens interdit de les assimiler à la Moldavie, au Monténégro ou à la Turquie au regard de leur droit à (ré-)entrer dans l Union. Bien qu il soit dépourvu de base juridique, le concept d élargissement « intérieur » parle à la raison, qui invite à distinguer ces élargissements-ci

de ces élargissements-là. 148

According to Fassbender, a prominent international and European law expert who advocates for an intermediate solution:

Commission President Barroso s view that after independence Catalonia or Scotland would have to apply for membership just like any other third country is wrong. The rules on accession, as to be found in Article 49 of the EU Treaty, were drafted with regard to real third countries, that is states which in the past were not part of the European Union. Since the first enlargement of the European Economic Community in 1973, by which Great Britain, Ireland and Denmark became members of the Community, up to the accession of Bulgaria and Romania to the EU in 2007, changes in the membership of the EU only occurred in this way, namely by real States complementing the former circle of member States ( ). In the absence of any particular provisions of the EU treaties dealing with the question of EU membership of a country the territory of which was a part of the European Union before independence, Article 49 of the EU Treaty can only be applied by analogy to the case of Catalonia or Scotland. This application must take into account the particular circumstances of

146 Avery G, The Foreign Policy Implications of and for a Separate Scotland, House of Commons Publications, HC 643 (session 2012-2013).

147 Author s translation: Para establecer el principio de que los territorios separados de un Estado miembro quedarían fuera de la Unión se han utilizado meros criterios de autoridad, pues ni hay precedentes ni existe previsión

normativa al respecto. Así, con reiteración se cita la opinión de Prodi, el que fuera presidente de la Comisión Europea, o más recientemente las opiniones de algunos comisarios europeos. Pero, las cosas no son tan sencillas. Lo cierto es que ninguna de las instituciones de la Unión Europea singularmente consideradas tiene la competencia para tomar decisiones al respecto; y mucho menos las personas que integran y dirigen las instituciones. Ibid 138, p 31. 148 Ibid 80, p 22.

the case, distinguishing it from the normal situation envisaged by Article 49, that is an application for membership submitted by a true third State. 149

In another article, entitled Bangemachen gilt nicht , making reference to the fear with which the European politicians seem to be trying to affect the political outcome in Catalonia and Scotland, he points out a realistic description of the issue:

It is understandable that the European Institutions support Spain, as a Member State, in the conflict with Catalonia. Nevertheless, it is to be expected that, should Catalonia indeed become independent, they would advocate continued membership to the EU. Any other position would not only go against the objectives and values of the Union, but, considering the economic strength of Catalonia and its role as a major investment destination and transit country, would also pose serious issues for all EU Member States. 150

Edward considers that: Maintaining the territorial and political integrity of the EU and the vested rights of its citizens is

surely of greater importance than blind acceptance of the contestable doctrines of public international law. 151

At the same time, the Scottish Government has expressed a different position in its White Paper:

The Scottish situation is sui generis. There is no specific provision within the EU Treaties for the situation where, by a consensual and lawful constitutional process, the democratically determined majority view in part of the territory of an existing member state is that it should become an independent country. Article 49 of the Treaty of the 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. The alternative to an Article 49 procedure, and a legal basis that the Scottish Government considers is appropriate to the prospective circumstances, is that Scotland s transition to full membership is secured under the general provisions of Article 48. Article 48 provides for a Treaty amendment to be agreed by common accord on the part of the representatives of the governments of the member states.

Article 48 is therefore a suitable legal route to facilitate the transition process, by allowing the EU Treaties to be amended through ordinary revision procedure before Scotland becomes independent, to enable it to become a member state at the point of independence. The Scottish Government recognises it will be for the EU member states, meeting under the auspices of the Council, to take forward the most appropriate procedure under which an independent Scotland

149 Fassbender B, The Place of an Independent Catalonia in the European Union, 3rd International Conference Sobirania i Justícia, Barcelona (4 October 2013), p 4

150 Author s transation: Es ist verständlich, dass in der Auseinandersetzung um Katalonien die Organe der EU ihrem Mitgliedsland Spanien den Rücken stärken. Doch ist zu erwarten, dass sie im Falle einer effektiven Unabhängigkeit

Kataloniens auf eine weitere Zugehörigkeit des Landes in der EU drängen würden. Jedes andere Handeln würde nicht nur die Ziele und Werte der Union beschädigen, sondern angesichts der Wirtschaftskraft Kataloniens und seiner Rolle als Investitionsstandort und Transitland auch zu schwerwiegenden Nachteilen für die EU-Mitgliedstaaten führen. Fassbender B, Bangemachen gilt nicht! Neue Zürcher Zeitung. 151 Ibid 72, p 1162.

will become a signatory to the EU Treaties at the point at which it becomes independent, taking into account Scotland s status as an EU jurisdiction of 40 years standing. The European Parliament will also play its role in Scotland s transition. 152

Finally, Currie stresses that: For me is pretty clear that an independent Scotland would have a right to be member of the EU and

I think that it would be very difficult for member States or a number of member States, or a single member States, to go trying to block that entry or that membership, should I say, forever more. I just don t see that happening, I don t think is in anybody s interest for that to happen. That said, I think there would be pretty tough negotiations. 153

To sum up, in the light of the several articles, opinions and statements developed in the academic area, it can be inferred that the European officers opinion regarding the question is not considered as satisfactory, at least from the legal perspective. A strong argument against this official position is that invoking Article 49 as the cornerstone argument would entail considering this provision not only as appropriate for ordinary accession, but also for cases of territorial reconfiguration, and this is not the case at all: Article 49 was not meant to foresee such situation. In the first part it has been analysed how some international organisations treaties do foresee the steps to follow in cases of secession. This is not the case of the EU, so giving a categorical answer as the EU s officials have, without properly justifying its legal foundations seems inadequate.

Of course, some authors, same as the Barroso theory , believe that the only acceptable procedure would be for Catalonia and Scotland to reapply for membership, but even in those cases, no scholar has advocate for an automatic outcome the result of which would be the sudden disruption of the several legal relations at stake. Anyhow, it is clear that to solve the dilemma, a new rule of EU law should eventually be formulated. This hypothetical clause have to express that, unless otherwise declared by the newly created State, Union law shall continue to apply. In addition, during the negotiation period taking place in order to accommodate the practicalities that will be described in section 3.5, the new State should keep being represented in the institutions by the original country. Kenealy describes this process as follows:

1. The Commission, acting under Article 48(2) TEU, submits a proposal to amend the Treaties to allow their application to an independent Scotland from the date of its independence. 2. Upon receipt of that proposal the Council of Ministers submits it to the European Council and the national Parliaments would be consulted. 3. The European Council, acting under Article 48(3) decides by simple majority, and with the consent of the Parliament, to call a conference of representatives of the governments of the Member States.

4. Negotiations proceed within the conference, including representation for the existing devolved Scottish Government. 5. Amendments to the Treaties enter into force after being ratified by all the Member States through whatever mechanisms they required as per Article 48(4) TEU. 154

152 Scottish Government, Scotland s White Paper: your Guide to an Independent Scotland, p 221. 153 http://www.bbc.com/news/uk-scotland-scotland-politics-26278237 154 Ibid 90, p 596.

3.3. Analogical Interpretations of Article 50 of the TEU If Article 49 of the TEU can be regarded as inadequate to deal with the issue, Article 50

describes the possibility of withdrawal. The rationale behind such a complex provision has been indicated to be precisely the assumption that a change in the stutus quo regarding the legal, political, financial, commercial and social relations that take place within the European Union would call for a negotiated solution. Nevertheless, according to Douglas-Scott:

If we accept the Barroso view, this would mean that Scotland would be immediately ejected from the EU. Its exodus would be automatic. Yet it is not clear on what treaty basis such an automatic withdrawal exists. It certainly stands in contrast to the formal procedure for withdrawal from the EU in Article 50 TEU. 155

The system of Article 50 indicates that the Treaties shall cease to apply once a withdrawal agreement has been reached, or in its case, two years after the withdrawal notification to the European Council. Thus, some scholars consider that if the Treaty-drafter has designed such a meticulous method for the event of a country, it would not be reasonable to consider that in the much more problematical case of a region becoming independent from a member State, this region would be automatically expelled from the European framework. Kenealy states: Article

50 speaks to the impracticalities of suddenly cutting loose an existing part of the EU s territory. The delay and agreement strategy is there precisely to avoid sudden and sharp dislocations in the single market. 156 The fact that the Commission is embracing such dislocation is certainly poorly justified at least from the legal perspective. In words of Edward:

Looking to the presumed intention of the Treaty-makers, they cannot reasonably be supposed to have intended that there must be prior negotiation in the case of withdrawal but none in the case of separation. They cannot have intended the paradoxical legal consequences of automatic exclusion suggested by the Barroso theory nor that the complex skein of relationships, liabilities and obligations created by EU law should be allowed to unravel without measures being taken to prevent it.

While the EU is certainly a creature of public international law, the Treaties create a "new legal order" which differs from conventional international law in that its subjects are not only the Member States, but also their nationals, now also citizens. 157

Also Chamon and Van der Loo share this approach: Article 50 TEU does not simply regulate the exit of a Member State from the EU, but provides a

general framework catering for a shrinkage in the scope of application ratione loci of the Union acquis. In the absence of such a framework, the scope of application of EU law might change from one day to the next, disrupting existing relations within the integrated internal market, without anything to follow up on this rupture. Economic operators and EU citizens could be confronted with the old existing barriers. Such a contraction already posed some problems when it happened in the early phases of European integration regarding peripheral regions (ie Algeria and Greenland).

155 Ibid 136, p 12. 156 Ibid 90, p 594. 157 Ibid 72, p 1167.

The effects and ensuing problems of such contraction, if it were to occur in the current state of integration, regarding a core region within the EU are hardly imaginable [emphasis added]. 158

Boyle and Crawford consider that [t]o withdraw automatically from the EU would seemingly conflict with this provision, which is the only express one in the EU treaties on withdrawal from membership 159 . On top of it, Article 4(3) of the TEU states the following: The member States shall facilitate the achievement of the Union s tasks and refrain from any measure which could jeopardise the attainment of the Union s objectives. Sabotaging Catalonia s and Scotland s membership to the EU would be the exact opposite to the instruction identified in this Article, especially considering Article 26(1) of the TFEU.

3.4. Recognition as a Prior Phase Another important legal weakness of the opinion expressed by members of the European

institutions is that it seems to disregard a previous stage before considering, in its case, the entity seeking independence as fully sovereign. It is of course the notion of recognition . According to Article 3 of the Montevideo Convention 160 , which has been repeatedly said to encapsulate consolidated customary law 161 , [t]he political existence of the State is independent of recognition by the other States.

The notion of recognition applied to Scotland, but especially to Catalonia, where the Spanish Government has constantly declared to be against the celebration of a referendum, let alone the recognition of an independent Catalonia, can result in fundamental legal riddles. When, for instance, Ms Reding argues that [a] few seconds after a vote for independence, Catalonia would

be out of the Union , she is actually recognising that a vote for independence would automatically turn Catalonia into an independent State, and this would not necessarily be the case, since several previous experiences show that in practice, recognition is a powerful legal instrument to undermine nascent political entities expectations. Otherwise, how absurd would

be a scenario in which Spain (as well as may other countries) would not recognise the independence of Catalonia, but the European Union would immediately so through its automatic expulsion?

Accordingly, a majority in favour of independence is not foreseen in any case (neither in Scotland nor in Catalonia) to have the instant effect of transforming the territories where the consultations will take place into independent counties overnight. In the Scottish scenario, the proclamation of independence is planned for the 24 th March 2016 162 . The idea that a vote for independence would have the abrupt effect of turning Scotland into an independent country is indeed not contemplated as part of the road map designed by the Scottish Government, which has planned a completely different legal strategy:

158 Ibid 84, p 9. 159 Ibid 103, p 100. 160 Montevideo Convention on the Rights and Duties of States (26 th December 1933). 161 Harris D (2004), p. 99. 162 Ibid 152, p 14.

Following a vote for independence the Scottish Government will immediately seek discussions with Westminster, with member states and with the institutions of the EU to agree the process whereby a smooth transition to independent EU membership can take place on the day Scotland becomes independent. The discussions will be held during the period in which Scotland remains part of the UK and by extension, part of the EU. This will allow the transition to independent EU membership to proceed without disrupting the continuity of Scotland s current position inside the EU single market or the rights and interests of EU citizens and businesses in Scotland. The Scottish Government believes that ensuring a seamless transition to independent EU membership will be in the best interests of Scotland, all member states and the EU in general, as well as those individual EU citizens and businesses who would be affected by any alternative approach. 163

Similar is the situation in Catalonia, where the Generalitat has not yet proclaimed any specific date, but where even the major pro-independence lobby foresees an eventual proclamation of independence for the 23 th April 2015 (long after the referendum will take place) 164 . There is in fact an important nuance in this case, since the Spanish Government is not willing to negotiate, but the case remains that it is not among the EU competences to act on behalf of its member States on such a sensitive issue; the Union would be exceeding its limits if it were to decide whether to affect the status of the new entity by implicitly recognizing it and ignoring the member States position (in a scenario in which not even the territory in question would have proclaimed its independence). In other words, recognising the new State as an independent country does not correspond to the European Union as such (let alone to the Commission), but to its member States (probably to the European Council, as already explained). This does not mean, of course, that the European institutions are not entitled to take an official legal position regarding seceding regions, but not inferring any automatic outcome; member States should definitively have a say in the question.

From this perspective, apart from the list of member States present in Article 52 of the TEU and the singular status of certain overseas territories described in Article 355 of the TFEU, there is no mention regarding the precise territorial scope of the member States of the Union. This is a purely internal question. In Hansen v Hauptzollamt Flensburg 165 , the Court of Justice declared that [t]he status of the French overseas departments within the Community is primarily defined by reference to the French constitution under which, as the French Government has stated, the overseas departments are an integral part of the Republic . This means that it is up to the member States to delimit its territory. In consequence, the treaties would continue to be applicable in Scotland and Catalonia until the affected member States would be willing to start negotiations, at least in principle. According to Ziller:

The territorial scope of application of EU law can be changed unilaterally by a member State giving independence to a territory or incorporating a territory ( ). The reunification of Germany, which legally speaking needed no approval of EC institutions and member States, was the decision solely of a member State and led to an increase of 4.66 % of the territory submitted to EC law and a new population of 16.5 million. 166

163 Ibid 152, p 220. 164 Assemblea Nacional Catalana, Full de Ruta 2014-2015, p 11. 165 ECJ, Hansen v Hauptzollamt Flensburg (1978), case 148/77, para 10. 166 Ziller J (2007), p 51.

In the same line, MacCormick (1999) considers that: The Greenland precedent is of decisive importance, for it shows that as a matter of European law a

territory cannot sever itself unilaterally from the constitutional jurisdiction of the European Communities (or, now, the European Union). 167

A final consideration in this regard can be made. For the States that would not recognise Scotland or Catalonia, there is no need for accession, since according to their position, these regions would still be part of the United Kingdom and Spain, respectively. On the other hand, it is likely that the States that would recognise the new States would not be reluctant to adopt a flexible position. Thus, the European institutions would find themselves in between a recognition dilemma. Same as in the case of Kosovo, the institutions would probably ignore the non-recognising countries in order to start developing a pragmatic strategy to safeguard economic interests.

3.5. Refuting Automaticity Finally, what can be regarded as the main incorrectness of the theory according to which an

independent Catalonia or Scotland would automatically be expelled from the European Union is the very notion of automaticity . Something that occurs automatically means something that occurs in an instant , immediate , abrupt or sudden way, and in reality, this is not feasible in the cases at stake, when so many legal imbrications could be jeopardized.

If actually possible, what would involve to automatically disrupting the legal link between the European Union and the territory, citizens and companies present in Catalonia or Scotland? According to Kenealy the Commission s position would create a sudden and sharp dislocation within the EU s single market, this making it impractical. 168

Some statements go beyond and even describe these consequences as something actually practicable. Ms Reding considers that Catalonia would be out of the Union. You would be out of the euro system. You would not have EU citizenship 169 . Nonetheless, Catalonia is already out of the euro system; this is not a consequence of its eventual independence but actually the current situation. Thus, Catalonia would not be out of the euro system because at present the Catalan institutions themselves do not have any kind of representation within the European Central Bank. In legal terms, the situation would be the same. Nevertheless, this does not go with the fact that Catalonia, same as Kosovo or Montenegro 170 , could unilaterally opt to remain de facto within the European currency. In fact, how could it be possible to physically impede Catalonia to use the euro?

167 MacCormick, Letter to the Glaswow Herald, 1 June 1999, quoted in Murkens JE, Scotland s Place in Europe (2001).

168 Ibid 90, p 589. 169 Ibid 112. 170 http://ec.europa.eu/economy_finance/euro/world/outside_euro_area/index_en.htm

Secondly, and coming back to the citizenship issue, how can Ms Reding foresee the future status of the Catalan inhabitants in relation to their nationality? Because what she is actually inferring when she argues that [y]ou would not have EU citizenship is that the Spanish authorities would, again, automatically , somehow nullify the validity of the nationality of the citizens born or residing in Catalonia, and as it has been observed, this has not been the outcome in any of the compared experiences in the Soviet Union, Yugoslavia or Czechoslovakia. The European Court of Justice in Zambrano v Office National de l Emploi 171 has claimed that

citizenship of the Union is intended to be the fundamental status of nationals of the Member States [ ].

In these circumstances, Article 20 of the TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union [emphasis added]. Chamon and Van der Loo reveal the inherent problems in terms of citizenship that would be triggered by the

automatic approach as follows:

EU citizenship is not merely a symbolic affair, but the basis of important very tangible material rights ( ). What would happen to those citizens that have already acquired the right of permanent residence under the Citizens Directive? Would these citizens lose this right since they would no longer fulfil one of the basic preconditions? Would they automatically qualify for the status of long- term resident as a third country national under Directive 2003/109? 172

It is easier said than done, but what does actually mean the treaties would, from the day of its independence, not apply anymore on its territory , as has been untiringly repeated? Would France have to start establishing customs in the Pyrenees? What if France refuses to do so? Would customs duties start applying to Catalan products, a vast proportion of which are produced by German, French and Italian companies? In words of Lawson:

Catalonia generated EUR58.4 billion of Spain s exports in 2013, 25 % of the total. 72% of Catalan exports went to other European countries, including in the key sectors of chemicals, machinery and automotive products. Exclusion from the European Union would expose Catalonia s exports to tariffs, with tariff barriers threatening both supply and demand chains with the rest of Spanish and European Union export destinations. 173

What would happen with the Catalan and Scottish European public servants? What would happen with the Scottish and Catalan MEP s? Would the Catalan authorities accept the Catalan percentage of the Spanish public debt if its membership to the Union is sabotaged ipso facto? Lawson also recalls on such risk when he states that: Catalonia was the largest contributing province to Spain s 2013 GDP. Spain s debt-to-GDP ratio would jump up to 116.4% from 96.5% in February 2014 if Catalonia broke away and refused to contribute to Spain s debt service. 174 How many financial imbalances at a European level would that generate?

171 ECJ, Zambrano (2011), case C-34/09. 172 Ibid 84, p 14 173 Lawson B (2014), p 6. 174 Ibid, p 5.

What would be the fate of the Erasmus students studying in Barcelona, Edinburgh or Glasgow and vice versa? How would be possible to deal with realities such as the operational Madrid-Barcelona, Barcelona-Paris high speed rails connections? In sum, is it really a solution to

no longer apply the treaties to territories which are already deeply integrated in the EU framework? How is that actually feasible, in its case, in an automatic way? Gounin defines such

a solution as follows:

Imposer aux nouveaux États de déposer leur candidature créerait une situation transitoire durant laquelle ils cesseraient de faire partie de l Union ou à l issue de laquelle, en cas d échec des négociations, ils en seraient définitivement exclus. Est-ce raisonnable ? Est-ce réaliste ? 175

As a final note, an above mentioned element that is not contemplated in the statements made by the Union s representatives is the institutional consequences that the implementation of their theory would have. According to Edward, [s]uch a solution would ignore the necessity to settle matters such as the number of members of the European Parliament and the contribution to the EU budget, to mention only two. Indeed, an illustrative example of a legislative adjustment that should need to be tackled if Catalonia or Scotland were to become independent is the Decision Establishing the Composition of the European Parliament 176 . The content of this Decision would need to be modified in order to reduce the UK s (73) and Spain s (54) number of representatives due to a reduction in these countries population, as well as to introduce Catalonia s and Scotland s parliamentary quotas . Another practicality that should be properly discussed is the budgetary position of the UK and Spain (as well as Catalonia and Scotland, if eventually admitted) within the Union 177 .

Apropos these practicalities, Paniagua highlights: In the case of the European Union, it would not be possible to maintain that the same deputies, the

same number of votes in the Council, the European Central Bank capital, etc. would correspond to the remaining State. A Treaty and derived law revision would be necessary in order to adjust the position of the remaining, resultant or primary State. 178

The Scottish solution to overcome these key institutional dilemmas, as already exposed, comes from the assumption that a negotiation period would be needed in order to settle the accession of Scotland as such to the Union before the independence would be declared: Thus,

[b]etween a Yes vote in 2014 and independence day, Scotland will agree the terms of our continuing membership of the EU. This will happen while we are still part of the UK and part of the EU, ensuring a smooth transition to independent membership. 179 In its turn, Avery shares

175 Ibid 80, p 33. 176 European Council Decision of 28 June 2013 establishing the composition of the European Parliament (2013/312/EU). 177 EU Net Contributor or Net Recipient: Just a Matter of your Standpoint? Deutsche Bank Research. 178 Author s translation: En el caso de la Unión Europea no sería posible sostener que le seguirían correspondiendo al estado originario o residual los mismos diputados europeos, los mismos votos en el Consejo, los mismos recursos procedentes del presupuesto de la Unión, la misma contribución, por ejemplo, al capital del Banco Central Europeo, etc. Sería precisa una reforma de los Tratados de la Unión y del Derecho derivado para ajustar la posición del Estado residual, resultante u originario. Ibid 138, p 13. 179 Ibid 146, p 25.

this perspective by arguing that: [n]negotiations on the terms of Scottish membership would take place in the period between the referendum and the planned date of independence. 180