Une Ecosse indépendante: a French legal view

Earlier this week, a renowned expert in EU law published a paper arguing that it is in the interests of the EU to negotiate with the Scottish government following a yes vote, in order to ensure a smooth transistion into EU membership for an independent Scotland.  Naturally the news was absent from the Scottish media, which only publishes information relevant to the debate on independence if it comes in a press release from Better Together covered in scary Halloween stickers.

Yves Gounin, formerly chief of staff to the French minister for European Affairs, wrote the article for the respected French journal Politique Étrangère.  Gounin is currently a Conseiller d’État, a member of the legal body providing official legal advice to the French Government so his views carry some considerable weight.  The full document is available by clicking the following link, which opens a pdf of the original French language article.  www.ifri.org/downloads/yvesgouninpe42013.pdf  If the link does not work, I saved a copy which you can download by clicking here: IFRI_yvesgouninpe42013.

I understand written French but don’t speak it fluently, so I have not attempted to provide a translation of the full article.  However the excellent Catalan news site Vilaweb has very helpfully published a wee piece in English giving the key points of Gounin’s paper.

Perhaps the most important point is Gounin’s explanation that what he terms “interior enlargement” cannot be compared to the admission of an external candidate state to the EU.

The EU accession process as spelled out in EU treaties deals with the steps to be taken by states which are not currently in compliance with those laws, in order to prepare them for EU membership.  This clearly does not apply to Scotland or Catalonia.  Scotland is already part of the EU by virtue of being part of the UK, and therefore all EU laws and regulations already apply to Scotland.  Likewise Scotland is already fully in compliance with all the conditions necessary for EU membership.

Gounin dismisses the view of the UK and Spanish governments – which insist that Scotland or Catalonia would have to exit the EU temporarily solely in order to reapply for membership – as “unrealistic”.  Which is polite legal code for total nut-jobbery.

In fact Gounin stresses that there is absolutely nothing in existing EU law or EU treaties which covers the situations of Scotland or Catalonia. There is no legal precendent, and anyone who tells you that Scotland would be out on its ear if we dare to vote yes is just making things up.  The fact that the UK Tories and the Spanish Partido Popular and their respective allies and hangers on have jointly arrived at the same made-up conclusion is just a happy coincidence, because conspiring with a foreign power to tell lies to your own electorate is very very naughty.

Gounin also makes another very interesting point.  The inhabitants of Scotland are EU citizens, and there is no provision in EU law for stripping an EU citizen of that citizenship.  Constitutionally, and differently from all other international bodies, the EU is a “union of citizens” as well as a “union of states”.  According to a ruling from the European Court of Justice, EU citizenship is held additionally to national citizenship, it does not replace it, although EU citizenship is also held by the Court to be “fundamental”.

In other words, it is very far from certain that citizens of an independent Scotland would automatically lose their EU citizenship because they’d no longer be living in the UK.  Gounin suggests that this view, frequently expressed by Unionist politicians and Better Together, is not in accordance with EU law.  It would be like getting sacked and having to reapply for your job because the name of your street was changed by the cooncil.

Gounin argues that the political landscape will alter fundamentally after a successful yes vote in independence referendums in either Scotland or Catalonia.  As things stand, no one has voted for independence, and it’s very much in the interests of the UK and Spanish goverments to discourage citizens in Scotland or Catalonia from voting yes, so naturally they portray the process of independence as fraught with difficulties and leading to inevitable doom.

Since the EU Commission is made up of representatives from member states, Spain and the UK have also made full use of their political clout to put pressure on the EU Commission to support their point of view.  This explains the politically motivated statements we’ve heard over the past couple of months from EU figures like Barosso and Van Rompuy – but it must be noted that even these statements do not give unequivocal backing to the positions of the UK and Spanish governments.

Nothing from the EU Commission to date contradicts Gounin’s arguments.  All the EU Commission has said up to now is that a state which becomes independent will no longer be subject to EU law, as it is not a signatory to the EU treaties.  However the scenario they describe will never occur.  In reality there will be a significant period of time after a successful yes vote in the independence referendum and the declaration of independence, and the Scottish government proposes to use this period to negotiate EU membership for Scotland.

After a yes vote however, Gounin believes that the attitude of the EU would change.  Faced with the reality that one EU member state will shortly become two states, Gounin says that it’s very much in the interests of the EU to ensure that the process proceeds smoothly and results in the seamless accession of an independent Scotland or Catalonia to full EU membership in their own right.  Gounin says that this can best be achieved by simultaneously negotiating independence alongside negotiating membership of the EU – which is exactly what the Scottish Government has been proposing all along.

Mind you, I’m struggling to recall reading any “major boost to Salmond’s EU hopes” style headlines in any UK papers this week.