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.

14 comments on “Une Ecosse indépendante: a French legal view

  1. […] Une Ecosse indépendante: a French legal view […]

  2. William says:

    Better Together’s stance is nothing more than political scaremongering to try to frighten Scots into voting No.

    What Yves Gounin has said, the SNP and pro-Independence website ‘Wings Over Scotland’ have been saying for ages.

  3. I like that idea of “interior enlargement,” very Diplomatie française and very “right up ye” in Diplomatie glaswegianaise.

  4. Gray says:

    Thank goodness someone is showing some sense, I was terrified I wouldn’t be able to use my car on September 19th as my drivers license would be invalid😛

    I know it’s been said before but it really is a sad indictment of our MSM that in order to get an impartial viewpoint on Scottish independence I have to read the foreign press.

  5. […] 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 s…  […]

  6. alister7 says:

    It is a very good and well argued piece by Yves Gounin. Not really, alas, surprised that it has been missed by the media. There is another very good analysis of the Catalan situation published by the University of Sydney, of all places. The authors take a different approach but come to the same conclusion – a negotiated settlement will be in the interest of all parties involved. The same will of course apply for Scotland, when we get a Yes vote.

  7. Re the individual citizenship thing, I wrote to Europe Direct to enquire as to my position in the event of a Yes vote. The response was very much along the lines of ‘too early to say’, but they added a significant comment,

    “Finally, European Union (EU) citizenship is a consequence of citizenship of a Member State of the EU. One cannot be an EU citizen without being a citizen of a Member State. It is additional to, but does not replace the latter.”

    In other words if a state becomes independent, EU citizenship is lost.

    • weegingerdug says:

      I think Gounin is arguing that this is contradicted by the provision that the EU is (uniquely) a “union of citizens” as well as a union of states. Whatever the exact situation, Gounin holds that it is by no means as clear cut as the anti-independence mob would have us believe.

    • rya says:

      The key issue is timing though. We will all still be UK citizens up until the date that Scotland becomes independent and so we will still be EU citizens. But that date is not until 2016. In the period between the September vote and independence day, this will all be sorted out, just as it was when the EU enlarged to accommodate the DDR without any real fuss.

  8. chicmac says:

    Perhaps the Scottish Government should undertake that in the event of a Yes vote, in addition to commencing negotiations with the UK and the EU, they will also begin parallel negotiations with EFTA.

    Might concentrate minds somewhat.

  9. Papadocx says:

    Sad day when you have to read foreign newspapers to get an honest and impartial view of politics in your own country. The Russian press are held up as a standard the “Great British” press should be aspiring too.
    You couldn’t make it up and there are still people who think the English press are worth reading, the mind boggles!

    The issue of the £ is answered unless GB is planning suicide.

    The EU issue is answered unless GB takes us out, we will be in!

    The NATO issue will be resolved as soon as we vote yes.

    If there are still poor souls who are for NO or DK then “none are so blind as those who do not want to see” act your age.

  10. […] Catalan website VilaWeb has provided a useful summary, as has Wee Ginger Dug, and the article itself is here in PDF […]

  11. […] Weegingerdug “Une Ecosse Indépendante: a French Legal View” published January 10, […]

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