The Scope of the EU Law

I. The Scope of the EU Law

1.1. The Hybrid Nature of the European Union No precedent or legal provision under European law detail any explicit rule to deal with the

circumstance of a region of a member State becoming an independent country; according to Thorp and Thompson, this is a major question in the independence debate, and one to which

there is no clear answer 73 . The exposed main tendencies in the international arena can bring some light to the question. Nevertheless, the natural legal framework in which the question shall be clarified is the European.

The doctrine has long debated about the political nature of the European Union. It can be said that the classical notions and features assigned to international organizations are no longer valid for the case of the Union, but it would be seemingly incorrect to simplistically attribute statehood to it. In any case, the particulars of this debate belong to the domain of political science; for the purposes of this study, sufficient is to highlight the hybrid nature of the Union and its unprecedented degree of integration. In words of Beulay, L orthodoxie juridique a longtemps refuse de voir en la Communauté plus qu une organisation international interétatique de type classique dont le niveau d intégration poussé n était que simple question

de degré et non de nature. 74

72 Edward D (2012), p 1161. 73 Thorp A and Thompson G (2011), p 1. 74 Benlolo M and Cujo E (2013), p 233.

The European Court of Justice has established in several occasions this feature by pointing out the singularity of the legal order created by the EU law. In what is considered as the principle of direct effect s foundational precedent, the judgment Van Gend en Loos 75 , the Court of Justice declared:

The Community constitutes a new legal order of international law [emphasis added] for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member States but also their nationals. Independently of the legislation of member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member States and upon the institutions of the community.

According to this statement, member States instituted an original legal system the nature of which is peculiar, in that it is neither international nor domestic law. In the Kadi 76 case the Court declared that the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement. The independence of the legal order created by the European Union has been unalterably invoked. In Opinion 1/91, the Court already consolidated this vision by stating that the EEC treaty constitutes the constitutional charter of a Community based on the

rule of law 77 . Furthermore, in the judgement Costa v ENEL 78 , the Court established the supremacy of EU law:

It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.

Another specificity of EU law is its direct effect upon the citizens. There is therefore a link between the Union and the member States, but also between the Union and the individuals. This link will be further analysed in section 1.3.

The mentioned traits make of the Union a fairly atypical organisation in the international field. It is not an ordinary international organisation, nor can it be said to be a State. In fact, the level of integration that Europe has reached in the past years makes of State succession a true conundrum scarcely comparable to any other international experience. In the above mentioned judgment, the Court declared: [b]y contrast with ordinary international treaties, the EEC Treaty has created its own legal system .

In turn, if we were to consider the EU as closer to a federal State than to an international organization, examining compared experiences of political reconfiguration within federal States would be certainly useful. Thus, some authors consider that due to the degree of integration that the European Union has reached, the question is not actually related to State succession in the typical sense of the term.

75 ECJ, Van Gend en Loos (1963), case 26/6. 76 ECJ, Kadi (2008), case 315/01. 77 Opinion 1/91, 14 December 1991. 78 ECJ, Costa v ENEL (1964), case 6/64.

In the article The Internal Enlargement of the European Union 79 80 , a group of scholars propose the separation of Jura from Berne, in the federal context of Switzerland 81 , as a relevant precedent. In 1974, a referendum took place in order to determine the creation of the new Canton of Jura. The outcome was in favour and as a consequence, in 1977, the Constitution of

Jura was approved 82 . The reasoning is as follows: in the case of Jura, the question was whether this region had the right to become autonomous from Berne to turn into a new canton, although still integrated within the Helvetic Confederation, i.e. the separatist movement did not intent to leave Switzerland. Similarly, in the cases of Scotland or Catalonia, the pro-independence movements intent to become independent from their mother States, but not to leave the EU.

The question jurassienne never raised doubts on whether the creation of a new canton would automatically cause the independence of this new entity from the broader Swiss framework. In consequence, this would be the logical assumption if one were to classify the EU as an entity closer to a State than to an ordinary international organization. The value of this analogical deduction is nevertheless limited, at least from a legal perspective, since the underlying question in still related to the political nature of the Union as such, something which has not yet been neatly clarified by the doctrine.

1.2. Relevant Treaty Provisions and Interpretation As exposed, the EU treaties are silent on the issue. The cause for the lack of any express

provision seems to be quite self-evident: already constituted States are not happily willing to set up the rules for its own eventual dismemberment. In words of the former Commissions General Director, Currie:

There is no clear route, we are not talking about a situation which is either foreseen in the Treaties or which anybody would have wanted to predict. One of the reasons I imagine is not in the Treaties is because people don t want to think about it. Because put it in on the Treaties is actually quite disruptive and quite destabilising. One of the questions I keep asking myself is: does it matter too much? This is going to have to be solved in a pragmatic way. 83

Also Chamon and Van der Loo interpret the absence of specific rules regarding State succession in the Treaties on the same ground, if the member States had acknowledged a possibility for sub-state entities to make use of the procedure of Article 50 TEU, they would have undermined their own territorial integrity. Obviously, such a possibility would be politically unacceptable. 84

Nevertheless, we can deduce general considerations from some Treaty provisions. Thus, in the absence of any express provision, the most significant articles from which we can extract

79 The Internal Enlargement of the European Union. Centre Maurits Coppieters, Brussels 2010. 80 Also Gounin (2013) makes reference to this question. 81 Pichard A, 2004. 82 Constitution de la République et Canton du Jura (20 March 1997). 83 Currie J, Official Report, European and External Relations Committee, 20 th February 2014. 84 Van der Loo G and Chamon M (2013), p 9 79 The Internal Enlargement of the European Union. Centre Maurits Coppieters, Brussels 2010. 80 Also Gounin (2013) makes reference to this question. 81 Pichard A, 2004. 82 Constitution de la République et Canton du Jura (20 March 1997). 83 Currie J, Official Report, European and External Relations Committee, 20 th February 2014. 84 Van der Loo G and Chamon M (2013), p 9

At a very basic level, for instance, in order to accommodate the Treaty to the new territorial situation, Article 52 would have to be revised. Also the interpretation of Article 238 of the Treaty on the Functioning of the European Union (TFEU) on how to determine the members of the Council and the population of the Union should be reconsidered if the Catalan or Scottish populations were to be either excluded or maintained as autonomous from the Spanish and British populations. Likewise, Article 3 of Protocol num. 6 on Transitional Provisions even quantifies member States votes. If Catalonia or Scotland would become independent before 31 March 2017, this provision should also be amended in order to recalculate Spain s and UK s votes for the case of a member of the Council requesting a decision to be adopted by this transitional voting system.

A simple Treaty revision is nonetheless regarded by Piris to be insufficient or, should be said, inaccurate, to properly channel the matter, since Article 48 does not deal with the issue of the admission of a State as a member of the EU. 85 According to Piris, the proper provision to solve the question is Article 49 of the TEU, which makes reference to the regular procedure by which a third country can apply in order to become a member State. Several commentators and

relevant personalities of the EU institutions 86 have relied upon this article. Piris declares that Article 49 is the only article in the EU Treaties which provides the specific procedure to be followed for the admission of a State as a member of the EU 87 . According to this point of view, a newly independent State would be regarded as a third State, analogue to Turkey or Switzerland, to whom the ordinary accession rules must unescapably be applied. Hence ratification by all the contracting States would be necessary in order for the application of the new State to be successful.

The Lisbon Treaty introduced an exit clause for members wishing to withdraw from the Union. Under Article 50 of the TEU, a member State would notify the European Council of its intention to leave the Union and a withdrawal agreement would be negotiated. This provision design a multiple-step, complex procedure the rationale of which, according to Edward is that

withdrawal from the Union would involve the unravelling of a highly complex skein of budgetary, legal, political, financial, commercial and personal relationships, liabilities and obligations. 88 Article 50 can provide with some insight as for the legal response that should be given in the case of a region (instead of a country) withdrawing from a member State. According to this clause, if an agreement is reached, the treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, in the absence of such agreement, two years after the State in question notifies to the European Council its intention to withdraw. Lazowski points out that the eventual agreement may be subject to

85 Piris J-C, Invitation to Give Evidence to the Scottish Parliament, 7 th and 9 th January 2014. 86 Mr Barroso, Mr Van Rompuy and Ms Reding are the most notable examples. 87 Ibid 85. 88 Ibid 72, p 1151.

judicial review 89 under article 263 of the TFEU. The relevance of Article 50 in relation to an eventual region s independence will be further analysed.

Finally, article 52 TEU consists of the list of member States of the European Union, among which, of course, neither Scotland nor Catalonia figure.

Some scholars refer to more abstract provisions of the Treaties, in search of general principles that could be used as guidelines to reveal the most appropriate solution. Edward refers to articles 2 and 4 TEU, and puts the emphasis on some of the core values upon which the European Union is founded, namely democracy, the rights of persons belonging to minorities, non-discrimination and the respect for the inherent political and constitutional fundamental structures of member States. Kenealy also refers to these principles by arguing that the EU would border on the schizophrenic were it to expel a part of its territory for exercising a democratic right to self-determination. 90

As for the interpretation of such provisions, the Court has held already in Van Gend en Loos 91 that it must be considered the spirit, the general scheme and the wording as well as the system and objectives of the Treaty. In Merck 92 , the Court stated that it is also necessary to consider not only its wording, but also the context in which it occurs and the objectives of the rules of which it is a part. The tenor of this interpretation is also followed in CILFIT 93 , where the Court stated that every provision of Community law must be placed in its context and interpreted in the light of the provisions of EEC law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. This seems to indicate that a restrictive interpretation should be discarded.

1.3. The European Union as a Union of Citizens Further deepening our understanding on the role of the individual within the Union, it ought

to be remarked that its status has been strengthened ever since the introduction of the European citizenship in the Maastricht Treaty 94 . All the same, already in 1963 the Court made a clear distinction between the member States and their citizens . Also, the Convention preparing the draft of the failed Constitutional Treaty acted on behalf of the citizens and Article I-1 reflected the will of the citizens and [emphasis added] States of Europe to build a common future .

Even with the more conservative language of the Lisbon Treaty, the main conjecture that the concept of citizenship is not exclusive to the member States remained intact. As a matter of fact, there are clear references to the connection between the EU and its citizens. Article 3(2) of the TEU declares that The Union shall offer its citizens an area of freedom, security and justice

89 Lazowski A (2012), p 523. 90 Kenealy D (2014), p 586. 91 Ibid 75. 92 ECJ, Merck, case 292/82, para. 12. 93 ECJ, CILFIT, case 283/81, para 20. 94 Treaty on European Union, Maastricht text (29 July 1992), Art. 8.

without internal frontiers ( ) [emphasis added] ; on its turn, Article 13.1 of the TEU establishes that The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the member States [emphasis added] . Correspondingly, the Preamble of the Charter of Fundamental Rights of the

European Union 95 , which, according to Article 6(1) of the TEU, has the same legal value as the Treaties, speaks in even clearer terms when considers that the Union [p]laces the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.

Of course, another debate is whether there are the citizens who belong to the Union or is, in words of Weiler, Europe which belongs to the citizens 96 . In any case, what is sure is that compared to any other international organization, the role of the individual under EU law is quite unique in that both, the Union (and its law) and its citizens, are reciprocally chained.

Even if the most notable issue to deal with is the fate of the Treaties and its eventual succession, the question of citizenship requires further examination. The idea of citizenship has been extremely important both in the processes of the Czechoslovakian and the Yugoslavian dissolutions. In the first case, the legal solution adopted allowed for the citizens of the two new States to decide on their citizenship: Article 3(2) of the Charter on Fundamental Rights and

Freedoms 97 allowed Czechs and Slovaks to choose: Everybody has the right freely to choose his nationality. It is prohibited to influence this choice in any way. In the second case, the Badinter Commission strongly suggested that individuals should be free to choose their nationality.

In the modern European context, the situation would be more complex, given the fact that, in principle, according to Article 20(1) of the TFEU, only the Spanish and the British nationalities are linked to the European citizenship. If the Spanish and British Governments were to follow the described tendency and would allow the Catalans and Scottish to choose between their old and new nationalities, the European citizenship would be entirely guaranteed. Given the current circumstances, in the Spanish case it would not be possible to deny the Catalans the right to keep their Spanish nationality if the case arises, since according to Article 11(2) of the Spanish

Constitution, [n]o Spanish by birth may be deprived of his/her nationality. 98 Seemingly, the UK Government Home Office indicated: The UK has [ ] been tolerant of plural nationalities, and it is likely there would be no barriers to holding both British and independent Scottish

nationalities. 99 The wording of Article 20 of the TFEU is clear when it declares the European citizenship as additional to the national citizenship, but Rieder considers that EU citizenship appears to be more robust than the Treaty which establishes this concept 100 . Kostakopoulou prescribes that, after all, the European citizenship is required in order to preserve the link between the citizen and the Union and his/her place in the European community of citizens. 101 Gounin explicitly refers to this question in relation to regional secessionism as follows:

95 Charter of Fundamental Rights of the European Union (2007/C 303/01). 96 Weiler J (1997), p 34. 97 Declaration on the Charter of Fundamental Rights and Freedoms of the Czech Republic No. 2/1993 Coll. 98 Author s translation: Ningún español de origen podrá ser privado de su nacionalidad. 99 HM Government, Scotland Analysis: Borders and Citizenship (2014), p 9.

100 Rieder M (2014), p 170. 101 Kostakopoulou D (2013).

The European Union is an international organization composed by States, but it is also a new legal order not only belonging to the countries, but also to the citizens. It would be a paradox to eject European citizens as a result of a democratic decision. It is not conceivable that Catalonia or Flanders, at the very core of Europe, would be thrown out during a long period. How would you do it? Would you reintroduce the peseta? Would you build customs duties in Saragossa or Perpignan? It is not conceivable. 102

In sum, by all these considerations it seems fairly reasonable to consider that as a consequence of the particular status with which the citizen is regarded under EU law, and unlike any other international organization, the political vicissitudes that could affect it may not disturb its legal position within the Union.

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