Scotland, Catalonia … what about the presence in the European Union

(BRUSSELS2) The creation of new States by splitting or independence of new Member States would be a first in Europe since the creation of the European Union. The referendum organized in Scotland today, in Catalonia, on November 9, will oblige us to answer a primary question: what about membership of the European Union? This question - contrary to what some European leaders suggest - is not just a binary choice: you vote against (independence) and you stay; you take your independence and you get out ... This postulate is a bit reductive of the legal, political and economic reality.

What do the texts provide?

First of all, nothing is foreseen in the Treaty, one way or the other. Which does not mean that there is a legal no mans land", as some write. Simply, it is not European law that governs the matter. But national law and international law, in particular the 1978 Vienna Convention on State Succession. Because the European Treaty remains, above all, an international treaty between several States.

An agreement within the State concerned

The consequences of independence, if any, should therefore be settled, first and foremost, at the level of the State concerned (or of the two States: the old and the new). This will be part of the negotiations between Edinburgh and London or between Barcelona and Madrid, as yesterday was settled between Prague and Bratislava, for the separation of Czechoslovakia. And that should take the form of a written act, an international treaty. The situation is clearer with London, which accepted and even organized the referendum, than with Madrid, which refuses it. This governmental agreement will then impose itself in a certain way on the other members of the EU. In case of doubt or dispute, reference may be made to the Vienna Convention on "State succession".

Adaptation decisions at EU level

Independence will require decisions at EU level, especially at institutional level. Talking about accession negotiations – as some politicians do, referring to enlargement negotiations – is a bit misleading. Because these regions are already part of the European Union, have adapted and transposed the various sections of Community legislation. A priori, they are therefore within the "nails" of Community legislation. If the new "independence" government dares to no longer respect certain parts of European legislation, this can be treated as for any State which does not respect the legislation, by a procedure in breach, or even in the event of violation of fundamental rights by a safeguard procedure, but not by exclusion from the EU. Adaptation decisions will nevertheless have to be made, particularly at the institutional and technical level. Decisions, to tell the truth, quite limited but which will require, in part, the consent of the other Member States.

Limited institutional adaptations?

At the institutional level, adjustments will have to be made more or less easily depending on the institutions.

In the Council of Ministers, the problem has been resolved since the entry into force of the Lisbon Treaty: the implementation of the new double majority rule (population/States), from November 2014, gives a number of votes to each Member State, automatically based on the weight of the population (according to Eurostat population data, reassessed each year and recorded by a Council decision published in the Official Journal). The United Kingdom will reduce its number of votes, Scotland will have the number of votes proportional to its population.

In the European Parliament, there shouldn't be too much of a problem either. On the one hand, the last European election in the United Kingdom was done according to a vote by large constituency, Scotland sending 6 deputies. This standard could serve as a provisional reference while waiting to adjust it (possibly) for the next European elections. On the other hand, the deputies mainly sit by political group. SNP (Scottish National Party) MPs in the Greens. The others elected in their respective groups (Conservatives with the ECR, Labor with the S&D, etc.).

It is at the European Commission that the change will be most visible, with the appointment of a commissioner for Scotland. The Commissioner-designate, Lord Hill, being British, should continue to sit in the UK's capacity. It will be necessary to make a little room for the new kid, find him a portfolio, a desk, a cabinet. But it is not impossible. Especially with the new "pyramidal" organization set up by the President of the European Commission, JC Juncker.

For the other institutions, it will be necessary to modify the rules of procedure or the statutes of the organizations (for example at the Court of Justice).

Certain technical provisions will also have to be adapted, particularly in terms of regional funds (facilitated by the definition of Nuts regions), fishing and agriculture. This is where it could turn out to be the longest and most complex. The devil sometimes nestles in the details. It will thus be necessary to define whether Scotland intends to put an end to certain exceptions negotiated by the British in terms of the Charter of Fundamental Rights, or (more importantly) on the Schengen area, or the legislation on Justice and Home Affairs.

Above all, it will be necessary to adapt the Treaty to formally include Scotland (and the Scottish language) or the presence at the European Investment Bank. But the changes are not that big actually. This could even be done at the margins... without changing the signature because the one who signed the Treaty on behalf of the United Kingdom is... the Queen who should remain the Head of State of Scotland! A protocol would suffice to indicate that it is now necessary to add "and Scotland" to its title. 🙂

What does the Vienna Convention say?

The Vienna Convention provides that " any treaty in force at the date of the succession of States in respect of the whole territory of the predecessor State remains in force ". This principle is crossed with a series of adjustments or exceptions, in particular for certain multilateral treaties which also require the " consent of States Parties ". I will not enter the detail of this text, leaving that to the specialists of the international law containing me to quote some interesting paragraphs of this convention. Its article 17, which governs multilateral treaties, is sufficiently clear to be quoted in extenso.

• "A newly independent State may, by a notification of succession, establish its status as a party to any multilateral treaty which, at the date of the succession of States, was in force in respect of the territory to which the succession of States relates. States. »

• This principle " does not apply if it appears from the treaty or is otherwise established that the application of the treaty in respect of the newly independent State would be incompatible with the object and purpose of the treaty or would radically change the conditions of execution of the treaty »

• « When part or parts of the territory of a State separate therefrom to form one or more States, whether or not the predecessor State continues to exist, any treaty in force at the date of the succession of States to in respect of the whole territory of the predecessor State remains in force in respect of each successor State so formed. » This principle does not apply: (a) If the States concerned otherwise agree; (b) it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor State would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation of the treaty. »

A political and economic logic that pushes towards the EU

The departure of Scotland or Catalonia from the European Union is a figment of the imagination and a very politicized "a priori" of the electoral campaign. Often waved as a threat to the starters, it could turn out, like a boomerang, to be very negative for the European Union as well.

Indeed, if Scotland or Catalonia leave the Union, the European companies working there and the European citizens residing there become "foreigners" and can no longer benefit from certain rights, for example a right of residence, a certain equality of treatment, exemption from customs duties. etc It's quite unthinkable. And the effort required to "dissociate" these territories from the European Union is much greater than that made to "reassociate" them. Political and economic logic will therefore push for a smooth transition from a united state to two states. All the more so since these two regions are rich (thus net contributors to the EU), well integrated and pro-European.

Moreover, it may be difficult not to compare these referendums with the precedent of "Kosovo" in 1999, or even of Slovenia and Croatia, where the European Union has (after some hesitation) supported separatist tendencies and the process of independence.

The only reservation could come from Madrid, which remains camped on a unionist position" (including on Kosovo). But will this be able to hold out for long within the European Union?