The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?

• DOI: http://doi.org/10.1111/eulj.12057
• Author: Guillaume Van der Loo,Merijn Chamon
• Date: 01 September 2014
• Published date: 01 September 2014

The Temporal Paradox of Regions in the

EU Seeking Independence: Contraction

and Fragmentation versus Widening

and Deepening?

Merijn Chamon* and Guillaume Van der Loo**

Abstract: This article investigates the possibility of regional entities within EU Member

States to become EU Member States in their own right following their secession from

their mother state. International law does not automatically allow such regions to remain

EU Member States since it refers this issue back to the constituent instruments of

international organisations and a reading of both the EU Treaties and the ECJ’s

jurisprudence seems to preclude such a ‘continued membership’. The article then further

explores the legal issues which could arise during the accession process of the newly

independent state. After suggesting solutions to bridge the gap between its secession and

its own EU membership, it is argued that the key challenge for such a region would be

to ensure a smooth transition, without the loss of prerogatives under EU law, from being

an EU region to an EU Member State proper.

I Introduction

This article focuses on the hypothetical issue of a newly independent state aspiring EU

membership, where that state used to be a regional or subnational entity (hereinafter:

region) of an existing state already party to the EU Treaties, before the secession of

the region in question. It should be noted that the vantage point of this article, the

independence of such a region is already quite contentious in itself given the question

whether such a secession would be legal under national constitutional and interna-

tional law. Nevertheless, the latter questions will not be dealt with in extenso here. The

main question of this article may for a large part be hypothetical but is not incon-

ceivable either as there exist several regional autonomist or separatist movements and

political parties within the current EU Member States.1While some of these political

parties have not (yet) expressed a wish to become fully independent from the national

state, others have. Curiously, some of the regional political parties that (ultimately)

* Academic Assistant, European Institute, Ghent University.

** PhD Candidate, European Institute, Ghent University.

1Scotland, Wales and Cornwall in the UK; Flanders in Belgium; Padania in Italy; Catalonia and the

Basque Country in Spain (and France); Corsica and Brittany in France; etc.

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European Law Journal, Vol. 20, No. 5, September 2014, pp. 613–629.

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plead for a secession from the national state also plead for continued EU membership

of their region, the most notable examples being Scotland, Catalonia and Flanders.2

This leads to the question of how such a move from being included in the EU as

subnational entity of an existing EU Member State to being included in the EU as a

Member State in its own right would work out under the EU Treaties.

This is not a straightforward question as the dominant logic in the EU Treaties is

one of widening and deepening, only through the amendments brought by the Lisbon

Treaty has the possibility of contraction, ie a contraction in the scope ratione loci of

EU law, of the Union been explicitly mentioned. The notion of fragmentation, ie the

process in which the territorial scope of application of EU law, remains constant, but

the EU itself being made up of more entities is completely absent from the Treaties.

This should not come as a surprise since fragmentation relates difficultly with the

notion of ‘ever closer union’ enshrined in the preamble to the Treaty on the EU and

the very core of European integration. In this sense fragmentation is still different

from contraction. Contraction simply runs counter to an ever closer union, but this is

not necessarily the case for fragmentation if an entity integrated in the EU falls apart

into, eg two entities that retain the same level of integration. In such a case the new

entities may still make progress towards an ever closer union, now not only with

previously existing entities in the EU framework, but also between themselves. The

uneasiness of the relation then lies in the fact that these two entities would have

rejected a (close) bilateral union but do accept an ever closer multilateral union.

In so far as necessary we should point out that the purpose of this contribution is

not to solve the numerous issues we raise, but rather to be contentious and provoca-

tive in making explicit the different legal problems that would arise if a basic scenario

such as the one spelled out above would materialise. Our legal analysis will rely on the

existing legal frameworks of EU enlargement and EU contraction since there is no

legal framework for fragmentation. Applying these frameworks will show how the

scenario described above raises serious legal problems, which, if analysed in depth,

lead to surrealistic scenarios. Since the latter would be unworkable, flexible political

solutions would have to be found. At the same time it would be wrong to dismiss the

relevance of the existing legal frameworks since politics does not completely trump

law. As the Advocate General for Scotland, Lord Wallace of Tankerness, recently

observed, the outstanding issues would have to be negotiated,3and these negotiations

would not be conducted in a complete legal vacuum but would rely as much as

possible on the existing legal frameworks.

It will further be demonstrated that, in order to guarantee a smooth transition from

its status as a region within the EU to a Member State within the EU, the region

could be forced to conduct three rounds of negotiations: (1) at the national level on

its secession, (2) at the EU level on its withdrawal from the EU and (3) at the EU level

on its accession.

2M. Keating, ‘European Integration and the Nationalities Question’, (2004) 32 Politics & Society 369–

370. For the N-VA in Flanders see paragraph 1.1 of the Party Statutes of the N-VA, see http://www.n-

va.be/statuten (last accessed 2 April 2012). For the SNP in Scotland see SNP Manifesto 2011, available

at http://votesnp.com/campaigns/SNP_Manifesto_2011_lowRes.pdf, 28 (last accessed 2 April 2012) and

for the CiU in Catalonia see its electoral programme for the 2012 elections, available at http://www.

arturmas.cat/programa.php (last accessed 21 January 2013).

3Speech of 2 October 2012. See http://www.oag.gov.uk/oag/files/Speech_Edinburgh_Centre_for_

Constitutional_Law.pdf.

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