Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland's Future in the European Union?

• Author: Stuart MacLennan,Daniel Kenealy
• DOI: http://doi.org/10.1111/eulj.12097
• Published date: 01 September 2014
• Date: 01 September 2014

Sincere Cooperation, Respect for

Democracy and EU Citizenship: Suff‌icient

to Guarantee Scotland’s Future in the

European Union?

Daniel Kenealy and Stuart MacLennan*

Abstract: The position of an independent Scotland within the European Union (EU)

has recently been a subject of considerable debate. The European Commission has

argued that any newly independent state formed from the territory of an existing

Member State would require an Accession Treaty. This article critiques that off‌icial

position and distinguishes between a set of claims that could be made on behalf of an

independent Scottish state, and a set of claims that could be made on behalf of the

citizens of an independent Scottish state vis-à-vis the EU. It argues that the general

principles of the EU Treaties ought to govern how Scotland is treated, and that a new

Accession Treaty is not necessary. Furthermore, notwithstanding the jurisprudence of

the European Court of Justice (ECJ) in the area of EU citizenship, we conclude that EU

citizenship itself is not suff‌icient to guarantee or generate membership of the EU.

I Introduction

The issue of how, and whether, Scotland would retain its membership to the EU has

become a source of considerable debate. One argument conceptualises Scottish mem-

bership as entirely contingent on it being part of the territory of the UK.1The

argument adopts a state-centric view of the EU and draws heavily on ideas and

discourse from public international law. The argument goes that, upon becoming

independent, Scotland would have to apply for EU membership under the provisions

set out in Article 49 TEU.2Others argue that Scotland’s membership would continue

(effectively) automatically by virtue of the possession of EU citizenship by those

* Daniel Kenealy is Lecturer and Deputy Director at the University of Edinburgh’s Academy of Govern-

ment. Stuart MacLennan is Arthur Cox Research Fellow and PhD candidate in the School of Law at

Trinity College Dublin. The paper was presented to the University of Edinburgh’s Europa Institute

Research Group, and the authors are grateful for the comments of all those present. We also thank the

anonymous reviewers and the journal editor for their suggestions. The usual disclaimer applies.

1The dominant argument is advanced by, amongst others, the European Commission (the Commission).

2For a more developed, legal version of the argument that Article 49 would remain the correct route, see

M. Chamon and G. Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence:

Contraction and Fragmentation versus Widening and Deepening?’, (2013) European Law Journal,

doi: 10.1111/eulj.12057.

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European Law Journal, Vol. 20, No. 5, September 2014, pp. 591–612.

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currently holding UK citizenship and living in Scotland.3In contrast, such an argu-

ment adopts a citizen-centric view of the EU and draws on rulings of the European

Court of Justice (ECJ).

The purpose of this article is to offer analysis of the various claims put

forth for a scenario in which Scotland votes to become an independent state. While

the article focuses on a specif‌ic example (in this case Scotland), many of the

points are generally applicable. The issue is particularly salient given the broad swell

in support for enhanced autonomy and/or independence from sub-state regions

across the EU during 2012. Giving serious political and legal thought to the

issue the day after a ‘Yes’ vote in such a referendum is arguably too late. The

groundwork ought to be laid now, and it is in that spirit that this article is

offered.

The article f‌irst offers a critique of the position set out by the Commission

(Section II). It then separates the analysis into claims that could be made on behalf

of a newly independent Scottish state (Section III) and claims that could be made on

behalf of the citizens of a newly independent Scottish state (Section IV). This article

argues that automatic expulsion of Scotland on the day of its independence stands

at odds with the general principles and spirit of the EU Treaties. While negotiations

would certainly be necessary4—given that at a minimum, the text of the Treaties

would have to be amended—it is far-fetched to suggest that Scotland would at any

point f‌ind itself on the outside seeking membership. It further argues that the

Commission, in adopting its current position, is failing to act in a manner consistent

with the role it is charged with. The article goes on to argue that while the complex

interplay of UK and EU law could result in the continuance of EU citizenship for

many, even all, of those Scots who are UK citizens at the moment of independence,

it is hard to envisage how the continuance of EU citizenship for those individuals

could somehow be generative of EU membership for Scotland. A brief conclusion

closes the article (Section V).

It is worth noting that, though this article addresses a current issue in EU law, a

number of the arguments offered could be applicable mutatis mutandis with respect to

other future instances of prospective state secession, for example in Catalonia.5In

particular, the arguments in Sections II and III would, abstractly, apply generally to

all secessions within the territory of the Union. The arguments made in Section IV are

more specif‌ic to the Scottish question, owing to the uniqueness of British nationality

law. The consequences for citizens of territories seceding from Member States will, as

Section IV argues, depend heavily on the law and practice of the nationality and

citizenship law of the Member State concerned.

It is also worth noting that the arguments made in this article are based upon an

amicable separation. The referendum in Scotland is taking place with the expressed

3A. O’Neill, ‘A Quarrel in a Faraway Country?: Scotland, Independence and the EU’, (4 Nov. 2011)

EUtopia Law, at http://eutopialaw.com/2011/11/14/685 (all hyperlinks last checked on 30 June 2013).

4The issue of negotiations, which would undoubtedly be necessary, is not something that falls within the

scope of this article.

5A different set of arguments would apply in instances where new states were formed by means other than

secession, such as dissolution—as would likely be the case in any division of Belgium. For further

discussion of the differences, see D. Edward, ‘Scotland’s Position in the European Union’, (2013/14) 1

Scottish Parliamentary Review 1; D. Edward, ‘EU Law and the Separation of Member States’, (2013) 36

Fordham International Law Journal 1151.

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