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Scotland in the European Union

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Annex 5 - Scotland's transition to EU membership

Following an affirmative vote in the 2014 referendum, the Scottish Government is committed to continuing Scotland's membership of the EU as an independent country, and plans to initiate negotiations to achieve this end immediately following that referendum. The negotiations will involve the Scottish and UK Governments, the Governments of all EU Member States and EU institutions. The purpose of the negotiations would be to agree the terms of Scotland's independent membership of the EU. In these negotiations the Scottish Government will at all times represent the best interests of the people of Scotland.

Although detailed negotiations cannot begin until after a "yes" vote has been secured in the independence referendum, an element of preparatory work could be undertaken in the meantime. The European Commission has made clear it is prepared to provide detailed advice on the prospective transition process to enable an independent Scotland to assume full EU membership on submission of a request by the UK Government.[71] This position was restated in a letter dated 22 January 2013 from Maroš Šefčovič, Vice President of the European Commission to Scotland's Deputy First Minister Nicola Sturgeon.[72] To date the UK Government has declined to approach the European Commission in these terms. This lack of cooperation is regrettable.

Scotland and the European Union

Scotland has been a constituent part of the EU since the accession of the UK in 1973 and over the intervening 40 years its economy and society has become an integral and fully integrated jurisdiction within the EU single market. This will continue to be the case following an affirmative result in the 2014 referendum. The Scottish Government's intention is that negotiations leading to Scotland's independent membership of the EU will begin immediately following the 2014 referendum and be concluded prior to the point of independence. Accordingly, these negotiations will take place during the period in which Scotland remains part of the UK and, as such, will be conducted "from within" the EU.

When Scotland becomes an independent Member State within the EU Scotland might appropriately be described as an "old" new Member State - that is a country fully integrated in, and conversant with, the structure and roles of the EU Institutions, and the legislative and policy processes for which these Institutions are responsible. Scotland has engaged the EU Institutions and policy processes as part of the UK Member State throughout the course of her 40 years of EU membership, and has, since 1999, been responsible for transposing, implementing and enforcing those EU legislative obligations that impact upon devolved competences, which include matters such as environment, health, education and rural affairs.

Article 2 of the Treaty on European Union (TEU) sets the general context within which the process of negotiating Scotland's independent EU membership will ensue:

"The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between men and women prevail."

As explained elsewhere in this paper the process by which Scotland will achieve independent statehood is wholly consistent with these principles.

The Scottish Government intends that detailed negotiations to secure the transition to Scotland's independent EU membership will begin immediately after the referendum. At that time the Scottish Government will formally request the UK Government to notify the Council of the EU (hereinafter the 'Council') to initiate the procedure necessary to allow Scotland to assume independent membership of the EU on the date at which Scotland becomes an independent country. This will include negotiations to determine the terms, and where necessary any transitional arrangements, under which an independent Scotland will take its place as a full EU Member State. The Scottish Government intends that these negotiations will be conducted between the date of the vote on 18 September 2014 and the date on which Scotland becomes an independent state in March 2016 - a period during which Scotland will remain part of the UK. There is no point in this transition process where Scotland requires to be, or will be, outside the legal and institutional framework of the EU.

The Scottish Government is therefore committed to working with the UK Government, the EU Member States and the EU Institutions to ensure the transition to independent EU membership is achieved smoothly and without interruption to the existing legal, political, financial, commercial and personal relationships, liabilities and obligations that collectively defines the totality of Scotland's engagement with her EU partners and their citizens. Inter alia this engagement includes approximately 160,000 workers and students who have chosen to come to Scotland from other countries of the EU whose rights and interests under EU law must continue to be protected. As indeed must the EU citizenship rights of Scottish citizens whether in Scotland or living and working in other EU Member States. Achieving a smooth and timeous transition is therefore not only in the best interests of Scotland, it is in the best interests of all Member States, and their citizens, and the EU in general.

The Domestic and EU Constitutional Setting

The Scottish parliament in Edinburgh was reconvened in 1999 after an adjournment of almost 300 years. The Scottish Government delivers every day for Scotland on a range of devolved policy competences including health, education, employment, and social policies. However, decisions that have a significant impact on Scotland's economic and social well-being - on economic (especially fiscal) policy, defence, foreign and EU affairs, and welfare - are taken by the UK Government in Westminster. This fundamentally restricts the ability of the Scottish Government to address a wide range of deep-seated economic and social problems that needlessly continue to blight the lives, and limit the life opportunities, of tens of thousands of Scotland's citizens.

Independence will transform this situation, including across the spectrum of EU policy-making that presently is reserved entirely to the UK Government. Under devolution the Scottish Government has little or no influence on the position the UK Government decides to adopt in EU-level debates about prospective EU laws and policies. Although the Scottish Government expects to be consulted by the UK Government if the proposal under consideration impacts upon devolved competences, the UK Government is under no obligation to take into account the Scottish Government's views. This is despite the fact that the Scottish Government's views will reflect the best interests of Scotland's EU policy stakeholders whose future prospects will be directly affected by EU-level decisions on these issues.

Moreover, even this modest and ineffective right of consultation with the Scottish Government is withdrawn when the policy under discussion at EU level has no direct impact on devolved competences. Therefore on issues as diverse and important as reforming the EU Treaties, the EU's foreign and security policies, the regulation of the financial services sector, rules governing state aid, and development cooperation and humanitarian aid (to name only a few) the Scottish Government is excluded from internal UK Government discussions as well as EU-level negotiations.

It is clear that devolution simply does not allow the government of Scotland to have an effective means of directly influencing EU laws and policies. Only through independence will the Scottish Government be able to ensure the views of Scots are fully represented at EU level, and that her national interests are properly represented and protected. Independence will allow Scotland's citizens to have a direct voice on EU matters.

Independence will also safeguard Scotland against the consequences of the UK Government's increasingly confrontational policy towards our EU partner countries. As a recent report of the Foreign Affairs Committee of the House of Commons made clear, there is growing concern that the UK Government's "…tone, language and overall approach…" in its dealings with its EU partners is rapidly reducing its influence in EU legislative and policy negotiations, crucially on issues relating to the operation of the single EU market. The Scottish Government does not consider this approach is in Scotland's national interest. Moreover this approach has the potential to be entirely self-defeating if it leads, as seems increasingly likely, to the UK leaving the EU - an outcome that would be disastrous for the Scottish economy.

Independence within the EU will allow the Scottish Government to adopt a constructive and positive approach to EU legislative and policy negotiations, including the shared EU reform agenda. This alone will significantly increase Scotland's influence in EU affairs compared to the present situation, and as a result greatly improve the Scottish Government's ability to maximise the economic and social gains to Scotland from EU membership.

The Edinburgh Agreement

The SNP victory in the Scottish Parliamentary elections of May 2011 returned to the Scottish Government a majority SNP administration elected on a manifesto commitment to conduct a referendum to determine whether Scotland should be an independent country. Subsequent negotiations between the Scottish and UK Governments led to the signing of the Edinburgh Agreement on 15 October 2012. That Agreement and subsequent legislation made by the Scottish and UK Parliaments and Governments provides the domestic constitutional authority for this referendum to be held, the result of which will be constitutionally binding on both parties. Moreover, paragraph 30 of that Agreement commits both Governments:

"…to work constructively together in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom."

The Edinburgh Agreement establishes the consensual nature of the domestic constitutional process that is underway. The procedure by which Scotland will achieve independent statehood is therefore fully compliant with UK constitutional law and practice. Accordingly the procedure by which Scotland will become an independent country presents no challenge to the integrity of the EU as set out in its constituent Treaties and evolving legal framework. The procedure is fully in accordance with the fundamental principles of the EU as expressed in Article 2, TEU.

Therefore although the case for Scotland's independence is at present a matter for political debate within the UK, both the UK and Scottish Governments, and their respective Parliaments, are constitutionally bound by the Edinburgh Agreement to accept the result of the 2014 referendum.

Accordingly in approaching the question of Scotland's independent membership of the EU, the Scottish Government is confident that the UK Government will fully support this process, and will do its utmost to ensure the procedure is completed smoothly and timeously.

The Scottish Referendum Bill

The Scottish Independence Referendum Bill introduced on 21 March 2013 provides for the referendum to be held on Thursday 18 September 2014. It is the intention of the Scottish Government that in the event of a yes vote in the forthcoming referendum, negotiations with the UK Government would commence immediately with a view to Scotland assuming independent statehood by March 2016, ahead of the elections to the Scottish Parliament in May 2016.

Concurrent with these internal negotiations the Scottish Government would open discussions with the EU institutions to discuss the terms of Scotland's continuing EU membership as an independent Member State. As these discussions will be held in the period during which Scotland remains part of the UK, it will technically fall to the UK Government, as the Member State, to formally notify the Council of the EU of the Scottish Government's intention to remain inside the EU upon independence, and to initiate detailed discussions to achieving this end. However, the Scottish Government would expect to be fully involved in this process.

EU Treaty Framework

The Scottish Government recognises that the EU Treaties make no specific provision for the consequences for EU membership where, by a consensual and lawful constitutional process, the democratically determined majority view in part of the territory of an existing Member State is that it should become an independent country. Accordingly the Scottish Government recognises that the transition to independent EU membership will require formal negotiations involving the Scottish Government, the UK Government and the governments of EU Member States to agree both the procedure by which, and the terms on which, Scotland will assume the obligations of EU membership as an independent country.

The Scottish Government acknowledges that facilitating an independent Scotland's transition to EU membership will require a revision to the EU Treaties.

On the basis of the EU's prior response to exceptional constitutional developments within its jurisdiction - most recently the re-unification of Germany -, the Scottish Government has no reason to doubt that the EU institutions, including the European Parliament, and the Member States will work constructively and expeditiously with the Scottish and UK Governments to facilitate Scotland's transition to independent membership of the EU.

The Transition route to Independent EU Membership

As a jurisdiction already having full membership of the EU, and compliant with EU laws and obligations, the Scottish Government will negotiate the terms of, and transitional arrangements for, an independent Scotland's membership of the EU during the period between September 2014 and March 2016; that is from its current constitutional position within the EU. The objective of the Scottish Government and, it believes, all other parties involved in the transition process including the UK Government, would be to ensure negotiations are concluded before Scotland becomes an independent State.

The proposals may be submitted by the UK Government with assistance from the Scottish Government. The Secretary of State for Scotland has already said "I see no circumstance in which the remainder of the UK would obstruct Scottish entry to the European Union, that's not an issue at all".

The Scottish Government is aware of the views set out by the President of the European Commission in his letter to Lord Tugendhat on 10 December 2012. In that letter President Barroso expresses the view that if one part of an existing Member State becomes independent, the "…Treaties would no longer apply to that territory". In some quarters this has been taken as a definitive statement to the effect that at the very moment of independence Scotland would be "excluded" from EU membership. The Scottish Government does not agree with this proposition.

As this paper highlights we consider that there is a legal framework by which an amendment can be made to the EU treaties prior to Scotland being established as a state to confer on it a right to be a party to the Treaties from that point. We also consider that during each step of the process there is a legal obligation under the EU treaties for the process to be conducted pursuant to the principle of sincere co-operation.

Furthermore that there is a legal obligation under the EU Treaties for it to be conducted by all parties according to the values of the Union and common to the Member States, including respect for democracy, respect for the rule of law and respect of human rights, including the rights of persons belong to minorities.

We also note that Professor Sir David Edward, formerly the British judge at the Court of Justice of the EU and one of the EU's leading legal authorities, has explicitly rejected this interpretation arguing instead that the principle of sincere cooperation set out in 4 (3) TEU obliges the Member States to engage in negotiations with both Scotland and the remainder of the UK ahead of independence "…to determine the future relationship within the EU of the separate parts of the UK and the other Member States".[73]

The Scottish Government believes the 18 month period between the referendum and formal independence provides sufficient time for interlocking discussions settling an independent Scotland's terms of EU membership as well as the revised terms of the remainder of the UK's terms of membership to be satisfactorily concluded. This timetable has been endorsed by Professor James Crawford[74]. Moreover, in the prevailing context of devolution the Scottish Government has demonstrated its capacity to transpose and implement the provisions of EU legislation.[75]

"As I say, it's not to suggest that this process is going to be - necessarily going to be difficult, because Scotland complies with the Acquis now, as part of the UK, but still the process has to be gone through". Professor James Crawford, Cambridge University, Good Morning Scotland, 11 February 2013

"Well, the Scottish estimate is about 18 months, and that seems realistic". Professor James Crawford, Today Programme, Radio 4, 11 February

EU Treaty Provisions

Article 49 TEU provides the legal basis, and defines the procedure, for a conventional enlargement where the candidate country is seeking membership from outside the EU. By virtue of having joined the EU in 1973 this is not the starting position from which the Scottish Government will be pursuing independent EU membership. In that sense, Article 49 does not appear to be the appropriate legal base on which to facilitate Scotland's transition to full EU membership. Accordingly, and insofar as the applicability of Article 49 is restricted to countries seeking EU membership from outside the EU, the Scottish Government does not regard this to be the appropriate Treaty provision to address Scotland's prospective circumstances.

The alternative to an Article 49 procedure, and a legal basis that the Scottish Government considers is appropriate to the prospective circumstances, is that Scotland's transition to full membership is secured under the general provisions of Article 48 TEU. Article 48 provides for a Treaty amendment to be agreed by common accord on the part of the representatives of the governments of the Member States.

Article 48 is therefore a relevant legal base through which to facilitate the transition process, by allowing the EU Treaties to be amended through Ordinary revision procedure initiated by the United Kingdom Government with assistance from the Scottish Government before Scotland becomes independent to enable it to become a Member State at the point of independence.

Article 48

1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified….

As already noted, it will be for the EU Member States meeting under the auspices of the Council to take forward the most appropriate procedure to facilitate Scotland's transition to independent membership of the EU. The Scottish Government would however stress that Article 48 (TEU) presents a legal path for the necessary amendments to the EU Treaties to be made to allow Scotland to become an independent Member State within the EU at the point Scotland becomes an independent state.

The Scottish Government also notes that the sole provision in the EU Treaties for withdrawal from the European Union is Article 50 TEU which sets out the procedures to be followed should a Member State voluntarily decide to end its EU membership. In that eventuality obligations are imposed on both the withdrawing Member State and the EU institutions, the aim of which is to minimize the disruption caused by withdrawal and to elaborate agreements providing for that country's future engagement with the EU. Article 50 is therefore a process by which the United Kingdom could, in accordance with its own constitutional arrangements decide to withdraw from the EU and give notification of that intention to the European Council. It is not a process which is relevant to the circumstances of Scotland. The Scottish Government has also made clear that it has no intention of seeking to withdraw Scotland's EU membership following independence.

Terms of Scotland's EU Membership: Continuity of Effect

The Scottish Government's objective in negotiating Scotland's transition to independent EU membership will be to ensure, post-independence, continuity of effect with regard to the rights and obligations that currently prevail in Scotland consequential upon the UK's membership of the EU. The Scottish Government believes this approach best secures the legitimate national interest of Scotland and its citizens, as well as the rest of the UK and indeed the EU in general. Accordingly, following independence the Scottish Government would not be seeking membership of the Eurozone nor the Schengen area and would be seeking to retain flexibility around participation in other Justice and Home Affairs measures. The detailed considerations that underpin this position are set out elsewhere in this paper.

As is made clear in those sections, the Scottish Government's position regarding both the single currency and Schengen elements of the EU Treaties is not predicated on any prior political or ideological opposition to either obligation. Instead, it follows from a detailed assessment of the adverse consequences for Scotland's economy and society that would arise from taking the steps necessary to begin the process of qualifying for membership of the Eurozone and Schengen area - i.e. exiting the sterling currency area and leaving the UK and Ireland Common Travel Area. The same reasoning applies in respect of other Justice and Home Affairs measures. Whilst we anticipate that an independent Scotland would seek to participate wherever possible in new proposals, we recognise the significant benefits such measures bring to our citizens and the whole of the EU. The Scottish Government recognises that amendment to the provisions of the existing Protocol of the EU Treaty will be required in order to recognise Scotland's specific circumstances.

Notwithstanding the particular circumstances that compels the Scottish Government to retain sterling as the currency of an independent Scotland and ensure Britain and Ireland remains a border-free travel area, the Scottish Government also holds that the terms of Scotland's independent membership of the EU should in general recognise and uphold the existing rights and obligations of EU citizens and single market participants, including citizens of an independent Scotland, resident in Scotland. This accords to the principle of continuity of effect which the Scottish Government believes is the correct basis on which detailed negotiations should be engaged, and which will inform the position taken by the Scottish Government in the negotiations leading to Scotland's independent EU membership.

After Independence: Scotland's Future in the European Union

An independent Scotland has a significant contribution to make to the future of the EU. The Scottish Government looks forward to an independent Scotland playing a full and constructive role in the future of the European Union and recognises that the principles of mutual support and solidarity are central to ensure the objectives set out in the EU Treaties are fulfilled.

The Scottish Government believes that Scotland can, and will, effect a smooth, co-operative and timely transition to independent membership of the EU. Ensuring Scotland's continuous membership of the EU following a vote for independence is in the shared interest of the Member States of the EU and, indeed, the EU as a whole. Scotland as a nation commands significant assets - R&D, oil and gas, renewables - of considerable benefit to the EU and is an integral part of the EU single market. The Scottish Government is committed to working with its partners in the UK and across the EU to successfully conclude negotiations on transferring Scotland's EU membership from membership as part of the UK to membership as an independent Member State.

Between now and the independence referendum on 18 September 2014, the Scottish Government will continue to engage in discussions with its EU partners and EU Institutions to ensure this transition process can be smoothly and speedily achieved.

Upon achieving independent Member State status, adaptation will need to be made to the EU's institutional procedural rules to accommodate Scotland's equal representation in EU institutions (primarily the European Parliament, Council, Commission, Court of Justice). Accordingly, and consistent with the EU rules, Scotland is likely to gain a number of additional Members of the European Parliament, nominate a Commissioner to the European Commission[76], and nominate judges to sit on the EU Court of Justice and General Court. Moreover, and in line with common practice, the European Commission can be expected to hire a number of new officials from Scotland to positions of various levels of seniority. Scotland will also be represented on both the Economic and Social Committee and the Committee of the Regions of the EU.

"All of this work should show that the Scottish Government does not take the process of EU membership for granted. We understand that it is essential to respect the legitimacy of existing treaties. We also understand that our continued membership will require negotiation, and the agreement of other nations. To secure that agreement, Scotland would make a notification of intent in autumn 2014, following a yes vote in the referendum. That notification would make it clear that we want to continue in the European Union as an independent nation". Deputy First Minister, Nicola Sturgeon, European Policy Centre, Brussels, Tuesday 26 February 2013