© 2019 SCER
The Brexit vote in 2016, and the UK’s eventual departure from the European Union in January 2020, have intensified calls for another Scottish independence referendum. It is therefore most likely that any campaign for independence would envisage an independent Scotland as a member state of the EU.
It is thus important to be clear about the process by which an independent Scotland could become a member state and what this would entail in legal terms.
There is little doubt that an independent Scotland would qualify to apply for EU membership. Article 49 of the Treaty on European Union (TEU) says that “any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union”. The values referred to in Article 2 TEU are “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”, all of which an independent Scotland would surely want to embrace.
Accession to the EU happens via an accession treaty negotiated between the candidate country and the EU represented by the Commission. The treaty requires unanimous approval by the Council – i.e. each member state has a veto – and support from a majority of members of the European Parliament.
The EU requires that candidate countries comply with the three so-called Copenhagen criteria:
- political criteria relating to the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
- economic criteria, i.e. a functioning market economy and the capacity to cope with competition and market forces;
- and adoption of the entire EU acquis.
Additionally, the EU must consider itself to have the capacity to absorb new member states. For instance, in 2014 the Juncker Commission announced that there would be no further enlargement of the EU during its five year term.
Procedurally, when a country submits its membership application, the Council asks the Commission for an opinion on whether the country is prepared to enter the accession negotiations. If the opinion is favourable, the European Council decides on whether a country is given ‘candidate status’. As, for example, the latest Council conclusions on the application by Bosnia and Herzegovina show, the crucial aspects in the Commission’s opinion relate to the political and economic criteria, but the Commission will also assess in how far the country is aligned with the acquis.
Once candidate status is granted, negotiations can commence though this does not always happen immediately. Negotiations take place in the framework of an intergovernmental conference, yet in practice it is the EU Commission that leads on the negotiations. The negotiations are generally divided up into 35 chapters; once all of these are closed, an accession treaty will be drafted, which is then put before the European Parliament and the Council for approval.
While the political and economic criteria would in all likelihood not pose major difficulties for an independent Scotland, the requirement of adopting the entire EU acquis might be more problematic. Adoption of the EU acquis – divided into 35 different ‘chapters’ – would require Scotland to sign up to and implement all EU law in all policy areas. It would also require Scotland to comply with the EU’s agreements with third countries (trade deals and so on).
Of course, Scotland is currently largely in tune with the EU acquis, but the UK enjoyed various opt-outs, which it would find difficult to maintain. Additionally, by the time it came to EU accession negotiations, Scotland may have spent several years outside the EU and may therefore have deviated from the acquis in several areas, in particular where matters reserved to Westminster are concerned. Finally, an independent Scotland would need to set up various regulatory bodies and other institutions – e.g. a central bank, a competition authority, etc. – which would enable it to fully function as an independent state.
The key question is in how far Scotland might be able to negotiate concessions in regard of any of the major opt-outs hitherto enjoyed by the UK. These were opt-outs from economic and monetary union (the euro); the Schengen zone, which abolishes checks on persons at the internal borders of the EU; an opt-in to the so-called Area of Freedom, Security and Justice; and the UK’s budget rebate negotiated in the 1980s.
From the perspective of an independent Scotland, securing the former two opt-outs would probably be most important for the following reasons: first, the currency question featured large in the last independence campaign and the Scottish government at the time campaigned on the basis that an independent Scotland would continue to use pound sterling; the current position of the SNP is that Scotland should introduce its own currency, i.e. not the euro. Second, full membership of Schengen would make Scottish participation in the UK-Irish common travel area impossible as it would require border checks at the Scottish-English border and at Irish Sea ports. Hence an opt-out would probably be considered desirable.
There is no precedent, however, of any prospective member state achieving opt-outs from major EU policy areas. The existing opt-outs from economic and monetary union – enjoyed by Denmark and until recently the UK – had to be granted as these were already existing member states. The same goes for existing opt-outs from the area of freedom, security and justice for Denmark and Ireland.
That said, there is evidence that accession negotiations provide some wiggle room but on smaller, more specific issues. Famously, Denmark’s ban on the acquisition of second homes by non-residents – constituting an exception to the free movement of capital – remains protected by Protocol No 32 to the Treaties. In a similar vein, Norway had managed to negotiate nationality restrictions concerning the ownership of forests and the breeding of reindeer in the 1972 accession treaty, which Norway then did not ratify. Sweden managed to preserve the legality of the sale of ‘snus’ tobacco.
Additionally, there are various examples of EU law accepting the peculiarities of a member state’s constitutional set-up: Ireland’s, until recently, strict constitutional prohibition on abortion was protected by a protocol to the Treaties. Furthermore, EU law accommodates complex (post-)colonial relations between member states and their overseas territories.
Yet there is no precedent of a new member states opting-out of entire policy areas that must be considered a core part of EU law. It would be important for Scotland to focus on what matters most. For a cash-strapped EU any budget rebate will be anathema. Equally, there will be little incentive for the EU to let an independent Scotland off the hook regarding EMU (more on this later though). And for an independent Scotland an opt-out of the area of freedom, security and justice measures – requested by the UK for mainly ideological reasons – would probably not be desirable.
Thus for Scotland the most realistic opt-out concerns Schengen. Not only would it be politically important to keep the borders with the rest of the UK as open as possible, but the vehicle with which this would be achieved – the Common Travel Area – has already been expressly recognised by the EU. Article 3 of the Ireland/Northern Ireland Protocol states that the “United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (the ‘Common Travel Area’), while fully respecting the rights of natural persons conferred by Union law”.
Granted, an independent Scotland would not automatically benefit from this provision as it would not automatically succeed as a party to the UK’s international treaties. But it could make a reasonable argument why – like Ireland – it should be allowed to continue to be part of the Common Travel Area. The reasons the EU agreed to Article 3 of the Protocol were twofold: first, it thereby confirmed Ireland’s existing opt-out of Schengen – which would have continued despite Brexit – and secondly, it keeps the border on the island of Ireland free from checks on persons. This second objective might serve Scotland’s position if it argued that the border needs to be kept open both North-South but also East-West.
What about the euro then? While express opt-outs are very rare, new member states are not required to comply with the entirety of the acquis from day one. The accession treaties usually contain transitional provisions; and membership of the Schengen zone – concerning the abolition of border checks – and of the eurozone require further action on part of the EU and the member state. For instance, Romania, Bulgaria, Cyprus and Croatia have not yet been admitted to the Schengen zone, which requires a Council decision to that effect.
More importantly, only 19 countries are currently part of the eurozone with a further 7 obliged to join even though a number of these have no concrete plans of doing so – Sweden being the longest abstainer in this regard. In order to qualify for eurozone membership, states must not only have met the economic convergence criteria, but must have also been a member of the EU’s exchange rate mechanism for at least two years. The latter cannot happen without the member state’s consent, so that the legal obligation to adopt the euro arising from the accession agreement is practically impossible to enforce.
An independent Scotland could, therefore, avoid having to take this step in practice. Yet it would not be possible for it to avoid having to commit to the adoption of the euro; and if politicians were too vocal about their non-commitment to taking such a step, there is a danger that the EU might in the end not agree to Scottish membership.
That said, the EU retains enlargement as a strategic objective and an independent Scotland, committed to European integration, would certainly be welcome.