The EU must respect new countries

Arc of Prosperity’s third guest blogger is James Chalmers. He’s a Scot originally from West Fife who has spent the last 40 or so years trying (and occasionally succeeding) to find oil in various areas around the North Atlantic — North Sea, both Scottish and Norwegian, West of Shetland and Greenland. He has lived in Denmark since the late eighties, is now retired and happily living in Copenhagen with his Danish wife.

Jens-Peter Bonde (a Danish writer and former member of the European Parliament) has written an article on the rights and relationships of an independent Scotland and Catalonia in the EU. The article was published in the Danish newspaper Jyllands-Posten on March 5th (in Danish, registration required).

A number of Bonde’s points are very important in the context of the rumours emanating from the both the Spanish and British governments that both Catalonia and Scotland will be thrown out of the EU in the event of independence.

Bonde points out that the EU treaties contain no provisions whereby a people could be thrown out of the EU. That could happen legally only with a change in the treaties that requires unanimous agreement of all 28 member states. Nor are there any treaty terms about assigning rights to regions that become nations. That also requires unanimous changes in the treaties.

There are, however, very strong legal bases for solving new situations like these. The treaties say, after all, that every European country has the right to be a member of the EU, whether or not it is a member already, if it satisfies various criteria. Catalonia and Scotland naturally satisfy these criteria because EU law already applies to the two regions and that has priority over all regional and national law. All of this means that an acceptable solution will be found about how to deal with parts of member states becoming independent.

The most important question that will require negotiation will be the new nations’ representation in the EU’s agencies. Will they be treated as independent nations and have their own members in the Commission, Council of Ministers and the European Parliament? When Czechoslovakia divided into the Czech Republic and Slovakia in 1993, the two countries were treated as independent nations. They later got representation equivalent to that of other counties with the same population. They were not punished for having separated. Quite the opposite, the two countries got a combined representation greater than they would have had if they had applied for membership as Czechoslovakia.

If Catalonia and Scotland receive a less favourable treatment, they can appeal to the EU Court and plead that they are being discriminated against compared with other nations. It will not be easy to find legal grounds for rejecting such an appeal. National discrimination is specifically forbidden in the treaties. The right of self-determination is an international legal principle that is also recognised by the EU.

Bonde claims that Scotland and Catalonia will be forced to accept the euro as their currency. Great Britain and Denmark have exceptions; the new countries don’t. Catalonia already uses the euro and has no plans on a new independent currency. Scotland uses British pounds and, the current SG proposal is a currency union with Great Britain. In that case, Scotland would not comply with the precursor conditions for joining the euro; its own currency that is stable against the euro for two years. Even in the event of an independent Scottish currency, Scotland could take the Swedish route end simply let its currency float against the euro, again meaning that it would not satisfy the pre-joining criteria.

Scotland can become a nation like Denmark, take part in the Nordic cooperation and be represented in the EU in the same way as Denmark in the EU and UN. With a commissioner, and place in the Council of Ministers and 13 members in the European Parliament, compared 6 today as part of the UK. These changes will require changes to the treaties as with every new land, and the changes have to be agreed unanimously. But with this difference; these new lands are already in the EU.

There is no authority to exclude Catalonia and Scotland from the EU if they vote for independence from Spain and Great Britain. Their relationships to Spain and the rUK are a Spanish and British affair, where the EU has no competence. The Spanish and British competence does not stretch far enough to exclude the two countries from the EU because they have voted for independence from Spain and Britain.

The two motherlands will therefore also be forced to find a solution if Scotland and Catalonia vote for independence. If independence infects the Basques and other peoples there will be many small nations in the EU, which will probably lead to a general revision of how the countries are represented in the EU. There has already been opposition in the big nations for every member country having a commissioner.

There will probably be an EU conference in 2015 for other reasons. The European Parliament will again try to get the treaties changed to a constitution. Germany will continue their influence in the various countries’ finance laws as a condition of continuing German contributions to the Euro’s survival. If Scotland and Catalonia vote for independence, this can lead to a general discussion about the future arrangements of the Europe of the Nations and the Europe of the Regions.